United States v. Windsor: SCOTUS Affirms, DOMA Struck Down - U.S. Second Circuit
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United States v. Windsor: SCOTUS Affirms, DOMA Struck Down

Edith Windsor, 83, spent 44 years with her late spouse Thea Spyer. Though they were engaged in 1967, they were not legally married until 2007, when the couple traveled to Canada to be wed. Though, at the time, New York itself did not allow same-sex marriages, the state did legally recognize the Canadian marriage.

Alas, while New York recognized their legal marriage, the Defense of Marriage Act required the federal government not to. When Spyer passed, Windsor was left with a $353,053 estate tax bill. She paid the IRS, then sued for reimbursement.

While the Department of Justice agreed with Windsor that DOMA was unconstitutional, the government denied reimbursement. Meanwhile, the House of Representatives' Bipartisan Legal Advisory Group (BLAG) sought to intervene and defend the law, creating questions of standing.

The Second Circuit, late last year, allowed BLAG to argue the case, yet ruled in Windsor's favor, finding that DOMA's Section 3, which defines marriage in a heterosexual context, was not related to an important governmental interest and violated equal protection principles.

That led to a U.S. Supreme Court appeal, and this morning's historic ruling.

Piecemeal Standing

Article III Jurisdiction

A case or controversy, without controversy? Both the Department of Justice and Windsor agree that DOMA is unconstitutional. However, because the government continued to withhold Windsor's tax payment, there was still an injury to be redressed by the Court.

Relying on and quoting INS v. Chadha, the Court's majority held that "even where 'the Government largely agree[s] with the opposing party on the merits of the controversy,' there is sufficient adverseness and an 'adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.'"

The impact of that holding is that the government can "create" a judiciable controversy, but not argue it in court, by agreeing with the opposing party but denying relief. It's a clever way to force the issue (and allow Congress to defend its own law) without paying the legal fees.

Prudential Considerations

Ordinarily, if both parties agree on the merits, prudential considerations would bar the case. After all, without "concrete adverseness," the difficult constitutional questions cannot be fully "illuminated."

Here, BLAG intervened and argued the adversarial points, providing the robust debate necessary to satisfy prudential concerns.

Another prudential factor in favor of hearing the case is the cost of not hearing it. DOMA's definition provision affects thousands of statutes. Uncertainty in the law, at this point, would be very costly in terms of judicial resources and expense of district-by-district and circuit-by-circuit litigation.

Finally, the Court is concerned that had they not taken the case, it would've allowed the Executive branch to violate separation-of-powers principles by refusing to enforce laws passed by the Legislative branch. It is an interesting notion, which the dissents disagree with, that the Judicial branch must step in and "say what the law is" when these separation-of-power violations occur.

Equal Protection

The Court begins its discussion of the merits by tracing the history of federal regulation of marriage. The short version is this: It nearly doesn't exist, other than in DOMA and a few other laws, such as immigration, that necessarily address the matter. The consistent stance of federal caselaw has been that marriage is a matter for the states to decide.

DOMA, on the other hand, seeks to define marriage federally, and treat couples differently, even if the state has already decided to treat them equally. That screams equal protection.

On that note, DOMA Section 3 fails, as the Court held that the "principal effect is to identify a subset of state-sanctioned marriages and make them unequal" and that "the necessary effect of this law [is] to demean those persons who are in a lawful same-sex marriage." Justice Kennedy goes on to hold "that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

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