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Religious Tolerance logo

Windsor v. United States lawsuit attempting to have the federal
"Defense of marriage act" (DOMA) declared unconstitutional

2012-OCT: Analysis of DOMA by Chief Judge Dennis
Jacobs, U.S. Court of Appeals for the 2nd Circuit

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The acronym "SSM" refers to "same-sex marriage."

"BLAG" refers to the "Bipartisan Legal Advisory Group of the United States
House of Representatives
." They are an intervenor-defendant in the case.

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2012-OCT-18: 2nd Circuit Court of Appeals determines the Defense of Marriage Act (DOMA) is unconstitutional:

A three judge panel of the United States Court of Appeals for the Second Circuit upheld the ruling of the lower Federal District Court  1,2.3 in the case Windsor v. United States. Both courts ruled that Section 3 of the Defense of Marriage Act (DOMA) is clearly unconstitutional. This section is the core of the DOMA law. It prevents any agency of the Federal Government from recognizing any same-sex marriage legally solemnized in the U.S. or elsewhere.

Section 3 of DOMA states in part:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

In this case, Windsor v. United States, DOMA requires the federal government to deny the existence of a valid marriage between Edith Windsor and Thea Clara Spyer, and to treat them as legal strangers -- simply as two persons occupying the same house. Thus, Ms. Windsor was required by the IRS to pay hundreds of thousands of dollars in inheritance taxes because of the home that the married couple jointly shared.

Chief Judge Dennis Jacobs issued the main opinion of the court in which he determined that:

  • Plaintiff Edith Windsor has standing in the case.
  • DOMA should be analyzed using intermediate scrutiny review criteria (a.k.a. "exacting scrutiny" or "heightened scrutiny").
  • That homosexuals as a group are a "quasi-suspect" class -- a group that is likely to be discriminated against.
  • That DOMA is unconstitutional when it is analyzed at this level of scrutiny and applied to homosexuals. 4

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Chief Judge Jacobs wrote that Edith Windsor has standing in this case:

Plaintiff Edith Windsor legally married Thea Clara Spyer in Toronto Canada, during 2007. They lived together in New York State until Spyer's death in 2009. In 2011, New York State legalized same-sex marriage (SSM).

He wrote:

"Windsor has standing in this action because we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer’s death in 2009, so that Windsor was a
surviving spouse under New York law. ..."

"Three of New York’s four appellate divisions have concluded that New York recognized foreign same-sex marriages before the state passed its marriage statute in 2011. ..."

"Two of these cases ... were decided before Spyer died on February 5, 2009. Given the consistent view of these decisions, we see no need to seek guidance here. Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing." 4

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Chief Judge Jacobs wrote that intermediate scrutiny review criteria should be used to evaluate DOMA's constitutionality:

Plaintiff Edith Windsor married Thea Clara Spyer in Toronto, Ontario, Canada, during 2007.

He wrote:

"... when it comes to marriage, legitimate regulatory interests of a state differ from those of the federal government. Regulation of marriage is 'an area that has long been regarded as a virtually exclusive province of the States. ... It has for very long been settled that “[t]he State . . . has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.' . .. .Therefore, our heightened scrutiny analysis of DOMA’s marital classification under federal law is distinct from the analysis necessary to determine whether the marital classification of a state would survive such
scrutiny. ..."

" 'In deciding an equal protection challenge to a statute that classifies persons for the purpose of receiving [federal] benefits, we are required, so long as the classifications are not suspect or quasi-suspect and do not infringe fundamental constitutional rights, to uphold the legislation if it bears a rational relationship to a legitimate governmental objective.' ... Of course, 'a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.’ ... so while rational basis review is indulgent and respectful, it is not meant to be 'toothless'. ..."

"The district court ruled that DOMA violated the Equal Protection Clause [of the U.S. Constitution] for want of a rational basis. ... But the existence of a rational basis for Section 3 of DOMA is closely argued. BLAG and its amici proffer several justifications that alone or in tandem are said to constitute sufficient reason for the enactment. Among these reasons are protection of the fisc, uniform administration of federal law notwithstanding recognition of same-sex marriage in some states but not others, the protection of traditional marriage generally, and the encouragement of “responsible” procreation. Windsor and her amici vigorously argue that DOMA is not rationally related to any of these goals. Rational basis review places the burden of persuasion on the party challenging a law, who must disprove 'every conceivable basis which might support it'. ..."

"So a party urging the absence of any rational basis takes up a heavy load. That would seem to be true in this case -- the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged. On the other hand, several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are 'historic patterns of disadvantage suffered by the group adversely affected by the statute'. ..."

"Proceeding along those lines, the district court in this case and the First Circuit in Massachusetts both adopted more exacting rational basis review for DOMA. ..."

"Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case. We therefore decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review."

"Instead, we conclude that review of Section 3 of DOMA requires heightened scrutiny." 4

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Chief Judge Jacobs determined that homosexuals "quasi-suspect" group:

A "quasi-suspect" class is a group that is likely to be discriminated against.

He wrote:

"The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include:

  • whether the class has been historically 'subjected to discrimination,'
  • whether the class has a defining characteristic that 'frequently bears [a] relation to ability to perform or contribute to society,'
  • whether the class exhibits 'obvious, immutable, or distinguishing characteristics' that define them as a discrete group. ...
  • whether the class is 'a minority or politically powerless. ..."

In this case, he determined that all four factors justify heightened scrutiny:

  • homosexuals as a group have historically endured persecution and discrimination;
  • homosexuality has no relation to aptitude or ability to contribute to society;
  • homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and
  • the class remains a politically weakened minority. ..."

"Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment 'is not sufficient to require ‘our most exacting scrutiny.’..."

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Chief Judge Jacobs wrote that DOMA is unconstitutional:

He wrote that BLAG, who are an intervenor-defendant in this case, promoted two main arguments justifying the passage of DOMA:

  • "It cites 'unique federal interests,' which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding 'the unknown consequences of a novel redefinition of a foundational social institution'."

  • "Congress enacted the statute to encourage 'responsible procreation'."

He wrote:

"... the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations."

"To the extent that there has ever been 'uniform' or 'consistent' rule in federal law concerning marriage, it is that marriage is 'a virtually exclusive province of the States. ..."

"As the Supreme Court has emphasized, 'the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [T]he Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce'. ..."

"Moreover, DOMA’s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, insanguinity, divorce, and paternity. ..."

"Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA."

Chief Judge Jacobs further examined and rejected other arguments in favor of the legitimacy of DOMA: [our comments in brackets]

  • Saving "... government resources by limiting the beneficiaries of government marital benefits." [If saving money is a major goal then the federal government could save a lot more money by denying the validity of marriage by persons with brown eyes or who are left handed]

  • "Preserving a traditional understanding of marriage." [This argument did not save miscegenation laws in the past which had banned interracial marriages on a state-by-state basis.]

  • "Encouraging responsible procreation." [Disadvantaging same-sex marriages does not positively influence procreation within opposite-sex marriages. Marriage is not a zero-sum game.]

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Webmaster's comment: [bias alert]

Our group is pleased to see that Chief Judge Jacobs does not consider the concept of "responsible procreation" valid. That concept denigrates the validity and significance of:

  • Childless families headed by loving, committed couples, both same-sex and opposite-sex.
  • Couples, whether of the same or opposite sex, who adopt children.
  • Couples, who parent children created by artificial insemination.
  • Couples, who parent children born of surrogate mothers.
  • Couples with step children in their family.

I am the father of an adopted child -- a professor at a Canadian university -- of whom I am very proud. I get very te'ed off when I see anything in print that denigrates adoption in any way.

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Summary of Chief Judge Jacobs' opinion and the court's conclusion:

"DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status -- however fundamental -- and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

For the foregoing reasons, we AFFIRM the grant of Windsor’s motion for summary judgment."

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The next step: BLAG has appealed the case to the U.S. Supreme Court.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Federal Court Declares 'Defense of Marriage Act' Unconstitutional," American Civil Liberties Association, 2012-JUN-06, at:
  2. Larry Neumeister, "NY judge: Anti-gay marriage law unconstitutional," Associated Press, 2012-JUN-06, at:
  3. Chris Palmer, "City Is Backing Widow’s Suit Over U.S. Law on Gay Marriage," The New York Times, 2012-JUN-20, at:
  4. Court ruling in Windsor v.  United States, U.S. Court of Appeals for the Second Circuit, 2012-OCT-18, at:  This is a PDF file.

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Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > Windsor v. U.S. > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Declared unconstitutional > Windsor v. U.S. > here

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Originally posted: 2012-OCT-20
Latest update: 2012-OCT-20
Compiler: B.A. Robinson

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