United States v. Windsor
|United States v. Windsor|
|Argued March 27, 2013
Decided June 26, 2013
|Full case name||United States, Petitioner v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.|
|Citations||570 U.S. 12 (more)
133 S.Ct. 2675; 2013 U.S. LEXIS 4935
|Prior history||DOMA declared unconstitutional sub. nom. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012); Affirmed, 699 F.3d 169 (2d Cir. 2012)|
|Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The Federal Government of the United States is thereby obliged to recognize same-sex marriages approved by states. The judgment of the Second Circuit is affirmed.|
|Majority||Kennedy (opinion), joined by Ginsburg, Breyer, Sotomayor, Kagan|
|Dissent||Scalia, joined by Thomas; Roberts (part I)|
|Dissent||Alito, joined by Thomas (parts II, III)|
|U.S. Const. amend. V; Defense of Marriage Act|
|Wikisource has original text related to this article:|
United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307), is a landmark case in which the United States Supreme Court held that restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.
Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007. Spyer died in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses. She was barred from doing so by Section 3 of DOMA (codified at 1 U.S.C. § 7), which provided that the term "spouse" only applies to a marriage between a man and woman. The Internal Revenue Service found that the exemption did not apply to same-sex marriages, denied Windsor's claim, and compelled her to pay $363,053 in estate taxes.
On November 9, 2010, a lawsuit was filed against the federal government in the United States District Court for the Southern District of New York, where Windsor sought a refund because DOMA singled out legally married same-sex couples for "differential treatment compared to other similarly situated couples without justification." On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff's position that DOMA violated the U.S. Constitution and said he would no longer defend the law in court. On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) continued defense of the law. On June 6, 2012, Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest. The U.S. Second Circuit Court of Appeals affirmed the decision on October 18, 2012.
BLAG and the U.S. Department of Justice (DOJ) appealed the decision to the U.S. Supreme Court, which issued a writ of certiorari in December 2012. On March 27, 2013, the court heard oral arguments. On June 26, 2013, the U.S. Supreme Court issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment.":25
On the same day, the court also issued a separate 5–4 decision in Hollingsworth v. Perry — a case related to California's constitutional amendment initiative barring same-sex marriage. The decision effectively allowed same-sex marriages in that state to resume after the court ruled that the proponents of the initiative lacked Article III standing to appeal in federal court based on its established interpretation of the case or controversy clause.
- 1 Background
- 2 Opinion of the Court
- 3 Responses and analysis
- 4 Subsequent developments
- 5 See also
- 6 Notes
- 7 References
- 8 Further reading
- 9 External links
In 2007, Edith "Edie" Windsor and Thea Spyer, residents of New York, married in Toronto, Ontario, under the provisions set forth in the Canadian Civil Marriage Act, after 40 years of romantic partnership. Canada's first openly gay judge, Justice Harvey Brownstone, officiated. Windsor had first suggested engagement in 1965. After Spyer's death in 2009, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of her wife's estate. If federal law had recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes. In May 2008, New York Governor David Paterson had ordered state agencies to recognize same-sex marriages performed in other jurisdictions. Some lower-level state courts had made similar rulings, but whether the state's highest court would give such a ruling the force of law, as Windsor's claim for a refund required, remained uncertain and was disputed throughout her lawsuit.
Windsor first found several gay rights advocacy groups unwilling to represent her, until she was referred to Roberta Kaplan, a partner at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, who later recalled: "When I heard her story, it took me about five seconds, maybe less, to agree to represent her". Kaplan had unsuccessfully represented the plaintiffs in a 2006 case that challenged the inability of same-sex couples to marry under New York law, Hernández v. Robles.
Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the American Civil Liberties Union (ACLU), filed the case in the U.S. District Court for the Southern District of New York on behalf of Windsor as executor of Spyer's estate on November 9, 2010.
On February 23, 2011, Attorney General Eric Holder released a statement regarding two lawsuits challenging DOMA Section 3, Windsor and Pedersen v. Office of Personnel Management. It explained that the Obama administration had determined that classifications based on sexual orientation should be subject to heightened scrutiny, and therefore it could no longer defend the constitutionality of DOMA's Section 3. The administration continued enforcing the law until was declared unconstitutional by the Supreme Court. On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. The Department of Justice did not oppose the motion.
Windsor filed a motion for summary judgment on June 24. New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011, arguing that DOMA Section 3 could not survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage." On August 1, 2011, BLAG filed a brief opposing Windsor's motion for summary judgment on the grounds that sexual orientation is not subject to heightened scrutiny.
On June 6, 2012, Judge Barbara S. Jones ruled that a rational basis review of Section 3 of DOMA showed it to be unconstitutional, as it violated plaintiff's rights under the equal protection guarantees of the Fifth Amendment, and ordered that Windsor receive the tax refund due her. Where BLAG had argued that the Spyer-Windsor marriage was not recognized by New York law at the time of Spyer's death–a prerequisite for Windsor's claim against the IRS–Jones cited the "informal opinion letters" of the state's governor, attorney general, and comptroller to the contrary along with several opinions in New York appellate courts. The plaintiff said afterward: "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."
Court of Appeals
Despite its approval of the ruling, the Justice Department filed a notice of appeal on June 14, 2012 to facilitate BLAG's defense of the statute. BLAG filed a motion to dismiss the DOJ's Second Circuit appeal on July 19, claiming the DOJ lacks standing because it prevailed in the District Court. Meanwhile, Windsor filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit's review, citing the plaintiff's age and poor health. The DOJ replied to BLAG's motion to dismiss, asserting: (1) its standing as an "aggrieved party", because the District Court's stay prevents the DOJ from taking steps to cease enforcement of Section 3 of DOMA; and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.
On September 27, Chief Judge Dennis Jacobs and Judges Chester J. Straub and Christopher F. Droney heard arguments in the case. On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional. The majority opinion stated, "It is easy to conclude that homosexuals have suffered a history of discrimination." Thus they were part of a quasi-suspect class that deserves any law restricting its rights to be subjected to intermediate scrutiny. Because DOMA could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection guarantees of the Fifth Amendment.
- "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." 
It was the first federal court of appeals decision to hold that laws that classify people based on sexual orientation should be subject to heightened scrutiny. Like the lower court, the Second Circuit held that the Spyer-Windsor marriage was valid under New York law, citing precedents on that question from several state appellate court decisions, two of which preceded Spyer's death.
On September 11, 2012, following Windsor's petition for certiorari before judgment and before the Second Circuit's ruling, the Department of Justice filed its own petition for certiorari before judgment with the Supreme Court. After the appellate ruling on October 18, the parties filed supplemental briefs. On December 7, the Supreme Court granted certiorari in the case, now United States v. Windsor, accepting the DOJ's petition.
In addition to the question presented by the DOJ – "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection" for same sex partners – the court also asked the parties to brief and argue two other questions: whether the government's agreement with the Second Circuit's decision deprived the court of a "real dispute" and therefore of jurisdiction to hear the case, and whether BLAG had standing in its own right, i.e., the legal right to independently ask for the appeal to be heard in the event that the government was not a valid petitioner. Article III of the Constitution (the "Case or Controversy clause") forbids parties that do not themselves have a real and personal ("particularized") complaint from filing a case or appeal in a federal court. A finding that the government lacked a "real" complaint because of its approval of the prior ruling and that BLAG lacked legal standing to appeal separately, would have automatically led to the appeal being dismissed, as ultimately happened in the parallel same-sex marriage case Hollingsworth v. Perry.
Windsor noted in a statement that when she and her partner met nearly 50 years prior that they both never dreamed their marriage would land before the Supreme Court "as an example of why gay married couples should be treated equally, and not like second-class citizens." Noting that her deceased wife would be proud, Windsor added, "The truth is, I never expected any less from my country."
On December 11, the Supreme Court appointed Vicki C. Jackson, a professor of constitutional law at Harvard Law School, as an amicus curiae to argue the two additional questions it posed. BLAG also filed its own petition for certiorari,[n 4] in order to enable the court to rule on the constitutionality of DOMA, even if it were to decide that it lacked jurisdiction to hear the DOJ's petition. The Supreme Court heard oral arguments on March 27, 2013.
Opinion of the Court
In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA (codified at 1 U.S.C. § 7) to be unconstitutional, "as a deprivation of the liberty of the person protected by the Fifth Amendment".:25 Justice Anthony Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Kennedy's decision to strike down a central part of DOMA cited the principles of state autonomy, equal protection and liberty, but the constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process. The Court wrote:
DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency... By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. ... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations. ... It forces them to follow a complicated procedure to file their state and federal taxes jointly. ... It prohibits them from being buried together in veterans' cemeteries.
For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer," ... with the intent to influence or retaliate against that official. ... Although a "spouse" qualifies as a member of the officer's "immediate family," ... DOMA makes this protection inapplicable to same-sex spouses.
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Justice Scalia's dissent, which was joined in full by Justice Thomas and in part by Justice Roberts, opens as follows:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.
Windsor's injury was cured by the judgment in her favor. [...] What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.
Scalia wrote in his dissent that the majority justices, through their opinion, resorted to calling opponents of same-sex marriage "enemies of the human race".
He argues that the Court's ruling would impact state bans on same-sex marriage as well, writing:
As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
In his concluding paragraph, Scalia wrote that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat." 
In terms of interpreting what the majority decision means, the opinions of Justices Roberts and Scalia expressly offered different interpretations. Justice Roberts felt that the majority opinion was based on federalism, that is, a conclusion that DOMA was unconstitutional because the federal government had interfered with a state power over marriage. He said "The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area 'central to state domestic relations law applicable to its residents and citizens' is sufficiently 'unusual' to set off alarm bells. ... I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism."  On the other hand, Justice Scalia claimed that it was not clear whether or not the case was based upon principles of federalism (and, therefore, a conclusion that the federal government had overreached into an assumed state realm of power) or whether it was based upon principles of Equal Protection. Indeed, he identified discussions of both principles and said that "if this is meant to be an equal-protection opinion, it is a confusing one." 
Responses and analysis
After the decision was announced, President Obama hailed the ruling as a "victory for American democracy". On the question of how the ruling would affect bans on same-sex marriage in those states that prohibit it, Obama said: "My personal belief, but I'm speaking now as a president as opposed to as a lawyer, is that if you've been married in Massachusetts and you move someplace else, you're still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple".
Laurence Tribe, a professor of constitutional law at Harvard Law School, described Scalia's response and dissent as "intemperate", "extraordinary", and "at the very least, an exercise in jurisprudential cynicism". He considered that Scalia appeared to have been unable to resist "the temptation to use the occasion to insult the Court's majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem [sic]) terms", and that he wrote "principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent". In his analysis, he comments that Scalia opined "about how the Court should have decided the very controversy that he says wasn't really before it", that "To accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah", and that "Scalia didn't so much as consider the possibility ... that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3." He concluded that in making his predictive statement about the future precedent of the case, "Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist".
Neil Siegel, a professor of constitutional law at Duke Law School, wrote that Justice Roberts's dissent relying on federalism was a fallacy in that the majority did not place any weight in the federalism argument, but rather used "federalism as a waystation" to put off making a decision on the constitutionality of state laws concerning same-sex marriage.
A day after the decision in Windsor, the federal judge hearing McLaughlin v. Panetta asked the parties to explain by July 18 why the logic that found Windsor unconstitutional did not apply equally to federal regulations that control eligibility for veterans' spousal benefits, which define "spouse" as "a person of the opposite sex." On July 18, 2013, BLAG stated in a court filing that in light of Windsor, they would no longer seek to defend this case or similar statutes in court, and sought leave to withdraw from defending the case.
In September 2013, a New Jersey judge ruled that the state's refusal to issue same-sex marriage licenses contradicted Windsor. Governor Chris Christie dropped his appeal of this ruling in October 2013 after the State Supreme Court signaled that they were likely to reject his appeal, making New Jersey the 14th state in the union to permit gay marriage.
Supreme Court cases
- Meyer v. Nebraska — 1923 case holding that the "liberty" protected by the Due Process clause "[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual...to marry, establish a home and bring up children...and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
- Loving v. Virginia — 1967 case invalidating 16 state laws prohibiting interracial marriage under the Equal Protection Clause and holding that marriage is a fundamental right.
- Zablocki v. Redhail — 1978 case holding that marriage is a fundamental right.
- Turner v. Safley — 1987 case holding marriage is a fundamental right.
- Romer v. Evans — 1996 case holding that an amendment to the Colorado Constitution that prevented protected status for homosexuals or bisexuals was unconstitutional because it was not rationally related to a legitimate state interest.
- Hollingsworth v. Perry, case on constitutionality of California Proposition 8's constitutional ban on same-sex marriage
- Bolling v. Sharpe — companion case to Brown below, finding that while the 14th Amendment's protections do not apply to the Federal Government or its agencies such as the District of Columbia, the equivalent protections against unlawful discrimination by Federal Agencies could be found through the 5th Amendment.
- Brown v. Board of Education — 1954 case finding discrimination on the basis of race or color by the states violates the 14th Amendment.
- List of United States Supreme Court cases, volume 570
- List of United States Supreme Court cases by the Roberts Court
- Goodridge v. Department of Public Health, a 2003 Massachusetts appellate court case which found that same-sex couples had the right to marry
- Gill and Massachusetts were decided in separate opinions in the District Court by the same judge on the same day and a single opinion in the Court of Appeals, which found Section 3 unconstitutional. Three petitions for certiorari were filed (docket numbers 12–13, 12–15, and 12–97); all were dismissed the day after the Windsor decision was announced filed, with Justice Kagan recusing.
- Golinski and Pedersen are both cases in which district courts held Section 3 of DOMA unconstitutional, though instead of appealing to the Courts of Appeal, an appeal was filed directly with the Supreme Court (docket numbers 12–16 and 12-231). The Supreme Court declined the petitions the day after Windsor was announced, with Justice Kagan recusing in Golinski.
- The Court of Appeals for Veterans Claims stayed Cardona, which challenges the constitutionality of section 3 of DOMA and certain federal regulations, pending resolution of Windsor.
- Bipartisan Legal Advisory Group of the United States House of Representatives v. Windsor, Docket No. 12-785, (U.S. Supreme Court, December 28, 2012).
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- See Lawrence v. Texas, 539 U.S. 558 (2003).
- Windsor, 570 U.S., at 22–23 (slip op.).
- See , .
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- Technical Bulletin TB–55, 2010 Vt. Tax LEXIS 6 (October 7, 2010); Brief for Federalism Scholars as Amici Curiae 34.
- National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008).
- Windsor, 570 U.S., at 23 (slip op.).
- Windsor, 570 U.S., at 23–24 (slip op.).
- Windsor, 570 U.S., at 25–26 (slip op.).
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- Carter, W. Burlette (2013). "The Federal Law of Marriage: Deference, Deviation and DOMA" (PDF). American University Journal of Gender, Social Policy and the Law 21 (4): 705–95.
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- Windsor v. United States – Complaint in District Court
- Windsor v. United States – District Court Decision
- Windsor v. United States – United States Court of Appeals for the 2nd Circuit Decision
- DOJ's Petition for Certiorari in the U.S. Supreme Court
- Windsor's Petition for Certiorari in the U.S. Supreme Court
- Merit and amicus briefs in the case
- Edie & Thea: A Very Long Engagement (2009 documentary film)
- NYU Alumni Magazine, Fall 2011