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United States v. Windsor

Citation. 133 S.Ct. 2675 (2013)
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Brief Fact Summary.

Windsor (Plaintiff) sued to recover the tax payment she paid after inheriting her same-sex spouse’s estate and being denied the estate tax exemption for surviving spouses because the Defense of Marriage Act defines “marriage” and “spouse” to exclude same-sex couples.

Synopsis of Rule of Law.

Section 3 of the Defense of Marriage Act’s definitions of “marriage” and “spouse” that excludes same-sex couples violates the Fifth Amendment’s Equal Protection Clause.


Plaintiff married Spyer in Canada. Their same-sex marriage was recognized by the state of New York. Spyer died, leaving her estate to Plaintiff. Federal law provided an estate tax exemption for surviving spouses. Plaintiff sought to avail herself of this exemption, but could not under § 3 of the Defense of Marriage Act (DOMA). DOMA defined the terms “marriage” and “spouse” as used in federal law and regulations to exclude same-sex couples. Plaintiff paid $363,053 in estate taxes and sought a refund, which was denied by the Internal Revenue Service (IRS). Plaintiff then sued for a refund, arguing that DOMA violated the Equal Protection Clause of the Fifth Amendment. While the lawsuit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would not defend § 3’s constitutionality. The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives intervened to defend its constitutionality. The district court held § 3 unconstitutional and ordered the IRS to refund Plaintiff’s taxes with interest. The court of appeals affirmed, but the IRS refused to pay until ordered by the U.S. Supreme Court, which granted certiorari.


Section 3 of the Defense of Marriage Act defines “marriage” and “spouse” to exclude same-sex couples. Does this violate the Fifth Amendment’s Equal Protection Clause?


(Kennedy, J.) Yes. Section 3 of the Defense of Marriage Act’s definitions of “marriage” and “spouse” that excludes same-sex couples violates the Fifth Amendment’s Equal Protection Clause. Addressing jurisdiction first, the United States has standing even though the executive branch does not defend § 3 because it was ordered to pay the tax refund. Although adversity is required to allow the two sides to skillfully present the two sides of difficult constitutional questions, BLAG’s argument in favor of § 3 satisfies concerns presented by a case in which both sides agree. Historically, the definition and regulation of marriage has been considered within the authority of the states. Congress has passed certain statutes regulating the meaning of marriage in furtherance of federal policy in the past, but DOMA has a broader reach than those previous statutes. DOMA impacts a class of persons that New York, as well as other states, have sought to protect. Examining the validity of DOMA requires discussing the historical authority of states over marriage. With the exception of certain constitutional guarantees, the regulation of marriage and families has been left to the states. This practice dates back to the founding of this country and the adoption of the Constitution. While marriage laws may vary from state to state, they are consistent within each state. DOMA is counter to this established practice. The state’s decision to give a class of persons the right to marry granted that class an important status. The federal government used this state-defined class to instead impose restrictions. The issue is whether these restrictions amount to a deprivation of a right protected by the Fifth Amendment. New York’s actions in recognizing Plaintiff’s marriage were a proper exercise of its authority. DOMA violates due process and equal protection rights when it seeks to injure a class New York seeks to protect. A congressional desire to harm a politically unpopular group cannot justify unequal treatment of that group. DOMA’s unusual deviation from the historical practice of recognizing state definitions of marriage deprives same-sex couples of the benefits and responsibilities that come with federal recognition of marriage. DOMA’s stated purpose and practical effect are to create a separate status upon those who enter same-sex marriages where those marriages are legal within that state. It deprives a subset of couples married within a state of rights and responsibilities. DOMA makes the marriages between same-sex couples second-tier. DOMA is unconstitutional as a deprivation of liberty guaranteed by the Fifth Amendment as to lawful same-sex marriages recognized under state law. Affirmed.


(Roberts, C.J.) The Court did not have jurisdiction to reach the merits of this case. On the merits, DOMA is constitutional. The majority does not show that Congress acted with malice, or that the law does not address a legitimate government interest. The Court has not answered the question of whether states can continue to use the traditional definition of marriage. The majority’s opinion is limited to holding that the federal government must leave this area of domestic relations to the states.

(Scalia, J.) The Court had no jurisdiction to hear this case because the President and the plaintiff agreed that the statute was unconstitutional. The case only reached the Court because the President enforced a statute he found unconstitutional in order to provide standing to the plaintiff. This manipulation should not be allowed. If the President declares a statute unconstitutional but enforces it anyway, the litigation should end in an order or consent decree enjoining enforcement. The majority’s decision on the merits is incorrect and inconsistent. The majority opinion asserts federalism as the reason for its decision, but does not reach the question of whether the federal intrusion on state power is unconstitutional. The opinion does not use equal protection as its basis, but cites several equal protection cases to explain why DOMA is unconstitutional. The opinion does not resolve the issue over the proper standard of review that was addressed in the lower courts. The majority seems to say that laws restricting marriage to a man and a woman should be reviewed for a rational basis, but it does not apply that deferential standard here. The Court avoids answering this question by saying that DOMA violates substantive due process, but does not show that same-sex marriage is historically and traditionally rooted. The opinion finds DOMA invalid because its purpose is to harm same-sex couples, but the Constitution does not forbid the government from enforcing traditional moral and sexual beliefs and it does not require society to approve of same-sex marriage. There are valid justifications for DOMA, such as avoiding choice-of-law issues and preserving the intended effects of legislation enacted before states began to allow same-sex marriage. Defending traditional marriage is not the same as demeaning, condemning, or humiliating those who are in same-sex marriages. Accusing Congress of such animus is demeaning to the Court. The majority’s claim that this opinion applies only to same-sex marriages valid under state law is not to be believed. The majority’s real rationale is that DOMA was motivated by a hatred of gays and that rationale will clearly be applied to state legislatures that prohibit same-sex marriage. The Court should let the people decide the issue in a democratic process.

(Alito, J.) The Constitution leaves it to the people to decide, through their elected representatives, how marriage should be defined. DOMA was the people’s expression of that decision and is not unconstitutional. It is inappropriate to consider the issue of same-sex marriage in terms of substantive due process because it is not a fundamental right deeply rooted in this country’s history and traditions. The Court should be careful in intruding in this area and should stick to interpreting the Constitution, not making important changes to society’s institutions. Plaintiff claims that under equal protection law, classifications based on sexual orientation should be examined under a heightened scrutiny, which DOMA cannot survive. The majority does not directly adopt this argument, but its opinion seems to rest on equal protection grounds. This approach is a poor one for evaluating the constitutionality of laws concerning marriage. Classifications subject to strict scrutiny must be narrowly tailored to achieve a compelling government interest. This level of scrutiny is reserved for classifications that are so seldom relevant to the achievement of any legitimate state interest that the law is considered to reflect prejudice and antipathy. Classifications subject to intermediate scrutiny must be substantially related to the achievement of an important government objective. This level of scrutiny applies to classifications that are sometimes relevant to a government objective, but generally provide no sensible ground for disparate treatment. The lowest standard of review is the rational basis standard which requires only that the classification be rationally related to a government interest. These classifications are not viewed as inherently suspect and under this standard, courts give deference to legislators in determining whether, how, and to what extent the government interest should be pursued. Applying heightened scrutiny in this case would effectively call all those who hold traditional beliefs about marriage bigots. The Court should not be the ones to resolve the split between the two competing views of marriage—the traditional view based on procreation and the “consent-based” view based on emotional commitment between two people. The Constitution does not endorse either view and therefore its silence should end the matter for the judiciary. Plaintiff asks the Court to resolve a matter better left to the people. Congress and the states can enact laws adopting either of these two views. The majority is correct in leaving the issue of marriage to the states and in the future, if the issue arises, the Court should leave the decision to the states. DOMA does not prevent any state from allowing same-sex marriage. It merely defines a class of persons to whom federal law extends certain special rights and responsibilities. Congress has the power to enact the laws affected by DOMA and therefore also has the right to define the category to whom those laws apply.


This decision is seen by many as a landmark civil rights case. Many scholars have noted Justice Scalia’s tone in his dissent. See Laurence H. Tribe, “DOMA, Prop. 8, and Justice Scalia’s intemperate dissent,” at https://www.scotusblog.com/2013/06/doma-prop-8-and-justice-scalias-intemperate-dissent. Other scholars disagree with Chief Justice Roberts that the majority based its decision on federalism. After this ruling, the Obama administration and federal agencies began conforming statutes and regulations to the Court’s decision. As predicted by the dissenters, lower courts have interpreted this decision in different ways when addressing challenges to state laws prohibiting the recognition of same-sex marriage.

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