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Religious Tolerance logo

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

2012-NOV: Speculation on whether the U.S.
Supreme Court will review any DOMA cases

Sponsored link.

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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 cases.

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This topic is continued from a discussion of separate DOMA
federal court challenges in Massachusetts and New York State

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2012-NOV: Two anti-DOMA cases were appealed to SCOTUS -- the U.S. Supreme Court:

The two cases are:

  • "Gill et al. v. Office of Personnel Management et al:" The Gay and Lesbian Advocates and Defenders (GLAD) -- a national gay-positive group -- filed a lawsuit against DOMA at Federal District Court in Boston MA. GLAD was representing eight same-sex married couples and three surviving spouses whose same-sex marriage partner had died. A second and very similar case case was launched by the Commonwealth of Massachusetts, called: Massachusetts v. Department of Health and Human Services. Because of the similarity of the cases, U.S. District Court Judge Joseph L. Tauro heard and ruled on both cases together. He determined that Section 3 of the federal DOMA law was unconstitutional. This section forms the core of the DOMA law. It prevents any agency of the Federal Government from recognizing any same-sex marriage legally solemnized in the District of Columbia or in one of the growing number of states where same-sex marriage (SSM) is available to loving, committed same-sex couples. The 1st U.S. Circuit Court of Appeals unanimously upheld Judge Tauro's decision. We refer to the combined case simply as "Gill."

  • "Windsor v. United States" was filed at Federal District Court in New York State by Edith Windsor. She had been required to pay the IRS over a third of a million dollars in inheritance taxes following the death of her wife, Dr. Thea C. Spyer. If Thea had been a male, Ms. Wilson would have inherited the home free of federal inheritance taxes. District Court Judge Barbara S. Jones ruled that the DOMA law is unconstitutional. A three judge panel of the United States Court of Appeals for the Second Circuit upheld the ruling of the lower court. Both courts determined that Section 3 of the Defense of Marriage Act (DOMA) is clearly unconstitutional.

In addition, the Justice Department has asked SCOTUS to review a third case: Golinski v. Office of Personnel Management (OPM). This lawsuit was filed in the North California District Court who ruled in 2012-FEB that DOMA is unconstitutional. The case involved the refusal of OPM to add Amy Cunninghis, the wife of Karen Golinski, to the latter's health insurance plan. It was appealed to the 9th U.S. Circuit Court of Appeals. However the hearing before that court has been suspended pending a decision by SCOTUS whether to review the case. 1

Section 3 of DOMA which represents the core of the law 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."

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Speculation about whether the U.S. Supreme Court will hear no, some, or all three cases:

The Supreme Court can choose to:

  • Refuse to hear the Massachusetts and New York cases from the 1st. and 2nd. U.S. Circuit Court of Appeals and the District Court case in California.

  • Grant certiorari -- decide to hear -- one, two or all three cases.

SCOTUS scheduled a meeting for 2012-NOV-30 to decide which path to take. Their decision was expected to be announced in early December. However, they were unable to resolve the matter and held a second meeting on DEC-07.

The Center for American Progress stated:

"To date, six federal courts -- four district courts and two circuit courts of appeal -- have all arrived at the same conclusion: The [federal] Defense of Marriage Act is unconstitutional. No federal court has ruled that the law is constitutional in at least the past five years. Put simply, the government does not have a substantial or compelling interest in denying same-sex couples marriage benefits, and therefore the law violates both the constitutional equal protection and due process rights of ... [same-sex legally married couples]." 2

Reporter Howard Mintx wrote in the Santa Cruz Sentinel:

"Both sides in the gay marriage battle and legal experts have little doubt the Supreme Court will take up at least some of the cases to put its stamp on one of the country's most pressing social issues. The mystery is in how far it will go. ..."

"The justices are expected to release orders revealing their decisions the first week in December, which means they would hear arguments in the spring and rule ... by the end of the term in June." 3

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Lisa Leff, at the Huffington Post, wrote:

"The federal trial courts that heard the cases all ruled the [DOMA] act violates the civil rights of legally married gays and lesbians. Two appellate courts agreed, making it highly likely the high court will agree to hear at least one of the appeals, Lambda Legal Executive Director Jon Davidson said. ..."

"The last time the court confronted a gay rights case was in 2010, when the justices voted 5-4 to let stand lower court rulings holding that a California law school could deny recognition to a Christian student group that does not allow gay members."

"The time before that was the court's landmark 2003 ruling in Lawrence v. Texas, which declared state anti-sodomy laws to be an unconstitutional violation of personal privacy."

"Brigham Young University law professor Lynn Wardle, who testified before Congress when lawmakers were considering the Defense of Marriage Act 16 years ago, said he still thinks the law passes constitutional muster."

" 'Congress has the power to define for itself domestic relationships, including defining relationships for purposes of federal programs,' Wardle said. ..."

"A group of 10 U.S. senators who voted for DOMA in 1996 have filed a brief with the Supreme Court angrily denouncing the Court of Appeal's ruling and urging the high court to overturn it."

" 'It is one thing for the District Court to conclude that traditional moral views, standing alone, do not justify the enactment of DOMA; it is quite another to find that legislators who hold or express such moral views somehow taint the constitutionality of the statute,' they said." 4

This raises the question that if discrimination against women, the LGBT community, or African Americans is generally condemned as bigotry in the form of sexism, homophobia, transphobia, or racism, is it still bigotry if the sexism, homophobia, transphobia, or racism is based on sincere religious or political beliefs?

The justices of the U.S. Supreme Court (SCOTUS) held a conference on 2012-NOV-30 with the intent of deciding which, if any, of the DOMA-related appeals to accept. They did not reach a decision, and planned to meet again on DEC-07. They still had spaces open in their schedule for the next session which would allow DOMA case(s) to be heard during 2013-Spring and allow rulings to be issued in mid-2013.

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Speculation ends:

On DEC-07, the Justices decided to not hear the appeal of Gill et al. However they did accept the appeal of the similar case Windsor v. U.S.

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This topic is continued in the next essay.

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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. Scottie Thomaston, "DOMA: Ninth Circuit oral argument in Golinski v. OPM cancelled pending Supreme Court action," Prop 8 Trial Tracker, 2012-JUL-27, at:
  2. Crosby Burns & Andrew Blotky, "Same-Sex Couples and the Supreme Court: What to Expect in the Coming Weeks," Center for American Progress, 2012-NOV-15, at:
  3. Howard Mintz, "U.S. Supreme Court poised to take up gay marriage," Santa Cruz Sentinel, 2012-NOV-25, at:
  4. Lisa Leff, "Gay Marriage Fight Could Head To Supreme Court," The Huffington Post, 2012-NOV-25, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconstitutional > here

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

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

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Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconstitutional > Gill et al > here

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Copyright © 2012 to 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2012-NOV-25
Latest update: 2013-MAR-12
Compiler: B.A. Robinson

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