United States v.

Windsor
Edith Windsor and Thea Spyer married in Toronto in 2007 where same-sex marriages
were legal. At the time of Spyers death, the state of New York recognized the couples
marriage. However, the IRS denied Windsor use of a spousal estate tax exception on
the ground that, under the Defense of Marriage Act (DOMA), the federal government
did not recognize same-sex marriages for the purpose of federal benefits. The Supreme
Court is now being asked to decide DOMAs Constitutionality. The Obama
Administration is not defending DOMA, so a Bipartisan Legal Advisory Group (BLAG)
from the House of Representatives is doing so, arguing that DOMA is rationally related
to the legitimate government objective of providing a uniform definition of marriage for
federal benefits purposes. The Obama administration counters that the use of sexual
orientation to decide who gets benefits is a suspect classification that deserves higher
scrutiny. Under that level of higher scrutiny, the Obama administration argues that
DOMA is impermissible. This case can affect what role the federal government can play
in defining marriage and who in the federal government can defend the governments
laws. Not only could this case provide large tax savings to Ms. Windsor herself, but it
can also make federal benefits available to other same-sex couples who are legally
married under the laws of their state.
Questions as Framed for the Court by the Parties
Section 3 of DOMA defines the term marriage for all purposes under federal law,
including the provision of federal benefits, as only a legal union between one man and
one woman as husband and wife. 1 U.S.C. 7. It similarly defines the term spouse as
a person of the opposite sex who is a husband or a wife. Ibid. The question presented
is:
Whether Section 3 of DOMA violates the Fifth Amendments guarantee of equal
protection of the laws as applied to persons of the same sex who are legally married
under the laws of their state.
In addition to the question presented by the petition, the parties are directed to brief and
argue the following questions: whether the executive branchs agreement with the court
below that DOMA is unconstitutional deprives this court of jurisdiction to decide this
case; and whether the BLAG has Article III standing in this case.
The substantive issue is whether Section 3 of the Defense of Marriage Act violates the
right to equal protection of same-sex couples who are legally married under state law.
The procedural issue is whether the Supreme Court has jurisdiction over this case in
light of the executive branchs refusal to defend the law in court.
Facts

Edith Windsor and Thea Clara Spyer first met in New York City in 1963. Having been in
a committed long-term relationship, they registered as domestic partners in New York in
1993, the year such partnership status became available. In light of Spyers long-term
suffering caused by multiple sclerosis and a heart condition, the couple decided to
formally wed in Canada in 2007.
Spyer passed away in February 2009, leaving
Windsor as her widow and sole executor of the estate.
Their marriage was recognized by New York state law but, upon Spyers death, Windsor
was denied a spousal deduction for her federal estate taxes under a federal law. This
provision allows such a deduction when property passes from the decedent to the
surviving spouse. However, DOMAs Section 3 states that for the purposes of federal
law the words marriage and spouse refer only to legal unions between one man and
one woman. ,
Because of this definition, when Spyer left her estate to Windsor, the federal
government imposed $363,053 in taxes on Spyers estate. Had the government
recognized their marriage, the estate would have qualified for the spousal exemption
and Windsor would not have had to pay any taxes. Windsor commenced this suit
seeking a full refund of the federal estate tax and a declaration that DOMAs Section 3 is
unconstitutional under the equal protection clause of the Fifth Amendment.
At that time, the governments position was that DOMA must be defended. However, the
President and the Attorney General eventually changed positions and announced that
they would no longer defend DOMA in court. Accordingly, under the direction of House
Speaker John Boehner (R-Ohio), BLAG has taken up defense of DOMA. After the
United States District Court for the Southern District of New York ruled in favor of
Windsor on summary judgment, the Second Circuit Court of Appeals affirmed.
Discussion
The Obama Administration argues Section 3, which defines marriage as between one
man and one woman, is unconstitutional under the equal protection clause and
advocates for heightened scrutiny of laws discriminating on the basis of sexual
orientation. BLAG argues that the Court should apply the lowest level of scrutiny,
rational basis review, because the lesbian, gay, bisexual, and transgender (LGBT)
community is not a protected class. .
Since all parties agree the Supreme Court has jurisdiction, the Court appointed an
amica curiae to argue against jurisdiction. The amica curiae argues there is no injury to
Congress if DOMA is overturned, that BLAG violates the separation of powers, and that
no Article III controversy exists.
DOMAs Effects on the Economy

DOMA supporters claim the law will save the federal government money by limiting tax
savings and avoiding Social Security and other payments to same-sex spouses.
According to BLAG,upholding DOMA is in the best financial interests of the government
because recognizing same-sex marriages would have a negative net impact on the
federal budget. BLAG argues that while the negative effects cannot accurately be
calculated, the uncertain economic effects of overturning DOMA are worrisome enough.
278 businesses are opposed to DOMA and argue the law is another form of government
regulation burdening businesses, inevitably leading to the waste of resources.
Businesses are required to treat employees with same-sex spouses as legally married
under state law, but as single persons under federal laws, which creates a burden for
employers by forcing them to discriminate against same-sex couples when
administering healthcare plans and other benefits. The companies also argue that
forced discrimination causes strained employer-employee relationships to the detriment
of their businesses.
The Social Implications of DOMA
BLAG argues DOMA serves a federal interest by preserving traditional marriage to
encourage responsible procreation. Proponents of DOMA believe marriage is about
bringing together men and women so children can have mothers and fathersparents
with differentiated roles that are not interchangeable. BLAG claims responsible
procreation is at the heart of societys interest in regulating marriage because of the
inextricable link between marriage and children.
Those opposed to DOMA argue it is bad social policy and claim that all Americans
regardless of their sexual orientationdeserve the rights afforded to their peers
because all are contributing members of society. They also argue that burdens placed
on members of the LGBT community are based on harmful stereotypes with no basis in
the individuals abilities.
Federalism Concerns
Proponents of DOMA claim the law protects states sovereignty and neither creates a
federalism problem nor hinders state autonomy. DOMA ensures states can
independently decide to refuse same-sex marriages because DOMA allows each state
to define marriage for itself under state law, and does not allow any states definition to
eclipse anothers.
Those opposed to DOMA claim Congress disregarded federalism concerns, even as
legislators in Congress championed states rights. Although the policy was born from
conservative states concern that they might be forced to recognize same-sex marriages
from other states, opponents argue DOMA interferes with states rights by hampering

some states decisions to treat all of their citizens equally. State sovereignty, they
argue, is impeded by the federal governments definition of marriage, instead of leaving
the definition up to the individual states.
Jurisdictional Issues
If the Court rules that it does not have jurisdiction because of the Obama
administrations decision not to defend DOMA, the Second Circuits ruling would remain
in place and DOMA would be considered unconstitutional and unenforceable in the
states within the Second Circuit. DOMA would remain in force in circuits which have not
ruled it unconstitutional, which would allow a future case to be appealed to the Supreme
Court for which there is jurisdiction. If the Court holds that there is a lack of jurisdiction,
then it will not decide the constitutionality of DOMA.
Analysis
Level of Scrutiny
The Obama administration, arguing on behalf of the United States, takes the position
that DOMAs Section 3 is unconstitutional. The United States advocates for applying
heightened scrutiny, which requires a more rigorous justification for laws that use
suspect or semi-suspect classifications including race or gender. The United States is
arguing that classifications based on sexual orientation should also be subject to
heightened scrutiny, which requires the government to show that the classification is
substantially related to an important government objective.
According to the United States and Windsor, classifications based on sexual orientation
fit all four of the factors the Court has identified to trigger heightened scrutiny. First, the
United States points out gay and lesbian people have been subject to a history of
discrimination, including a history of criminal prosecutions for the private and
consensual sexual conduct, and other discrimination in employment, immigration, hate
crimes, child custody, police enforcement, and voter referenda. Windsor notes that
much of this discrimination has come from the government itself. Second, sexual
orientation is not related to the ability of people to perform or contribute to society, so
the government cannot legitimately take sexual orientation into account for classification
purposes.
Third, sexual orientation is a discernible characteristic that distinguishes gay and
lesbian people as a discrete minority group. The United States contends the
distinguishing characteristic need not be immutable or obvious if the characteristic is a
distinguishing characteristic. The United States and Windsor point to scientific
consensus that sexual orientation is not a voluntary choice for the vast majority of
people.

Fourth, the United States contends that gay and lesbian people are both a minority and
politically powerless. While the United States does mention success for same-sex
marriage initiatives in three states this past November, the United States argues it is
more appropriate to look at the longer history of same-sex marriage initiatives where
voters have barred same-sex marriage through amendments to state constitutions. .
Windsor also asserts he political power of gay and lesbian people today is less than that
of women when they were granted status as a semi-suspect class.
BLAG argues that the Court should apply rational basis review to DOMA. . BLAG points
out that the Court will apply one of three levels of scrutiny to equal protection cases
ranging from heightened scrutiny to rational basis, which requires the government to
provide a rational justification for using a particular classification in a law. When
considering issues where sexual orientation was used as a classification in the past, the
Court has not specified the level of scrutiny but appeared to apply rational basis review.
BLAG contends the lower court was wrong to apply heightened scrutiny to DOMA In
BLAGs view, none of the four factors that would qualify a class for suspect treatment
are adequate in this case. Instead, BLAG sees gay and lesbian people as having
political power, including the support on the issue of same-sex marriage from the
President, Vice-President, and the Democratic Party. Additionally, popular support for
same-sex marriage has increased dramatically enjoying support from 53% of
Americans, which has resulted in successful ballot measures, and in BLAGs view
undercutting the argument that heightened scrutiny is necessary. . BLAG also notes that
it has been over 40 years since the Court has decided a new group should be
considered a suspect or semi-suspect class, demonstrating the Court is weary of adding
to the very limited list of groups that trigger higher levels of scrutiny.
Whether DOMA Should Survive Review on the Merits
Under the rational basis standard of review, the government needs to demonstrate a
legitimate purpose for using the suspect classification, which in this case would be
classifying same-sex marriage differently from traditional opposite-sex marriage. BLAG
argues that the legitimate purpose Congress advanced is a uniform national definition of
marriage to ensure couples in different states will be treated the same. Allowing different
definitions of marriage would, according to BLAG, allow for the possibility that a samesex couples federal benefits status would change if they moved from one state to
another.
BLAG also points to the historical prevalence of marriage being defined as between a
man and a woman as a reason why DOMAs definition is rational. Furthermore, BLAG
asserts the fact that states have been able to define marriage for the purposes of
defining federal benefits in the past does not mean that the Constitution forbids

Congress from defining marriage for the purposes of federal benefits. BLAG argues that
DOMA merely preserves the ability of each sovereign, including each state and the
federal government, to define marriage as the sovereign sees fit. Additionally, BLAG
says DOMA was an attempt to prevent the federal definition of marriage from changing
over time. A single, consistent definition of marriage would prevent more expansive
definitions of marriage that could increase the costs of implementing federal benefits
based on marital status. Finally, BLAG argues it was rational to pick a traditional
definition of marriage because Congress believed there could be uncertain social
consequences if it allowed a definition of marriage that had not been tested in many
societies.
On the other side, the United States argues that DOMA is a violation of the Equal
Protection Clause of the Fifth Amendment. The United States contends DOMAs Section
3 requires that same-sex couples who are married under their states law be treated
differently from a similarly situated opposite-sex couple and lead to inequality. To
demonstrate this inequality, the United States points to a variety of situations where
federal benefits can be denied to same-sex spouses including certain Social Security
and pension benefits, military service benefits for spouses, and particularly the
$363,000 estate tax reduction that is denied to a same-sex spouse at issue in the case
presently before the court.
Next, the United States does not believe tradition alone can justify discrimination.
Furthermore, DOMA does not prevent states from allowing same-sex marriage, which
provides a weak connection between the stated goal of preserving traditional marriage
and what DOMA actually achieves.
Additionally, the United States dismisses the justification of supporting Congress
general interest in defending the institution of traditional marriage as lacking a sound
basis. The legislative record does not contain evidence that denying federal benefits to
same-sex couples would encourage responsible procreation or child-rearing. The
United States also rejects the sovereigns choice argument because sovereigns choice
does not allow the federal government to violate Equal Protection. Finally, the United
States refutes fiscal savings as a justification for DOMA because the federal
government cannot single out a group for exclusion to save money.
If the Court does not apply a heightened standard of review, the United States would not
challenge DOMAs Constitutionality under a deferential form of rational review. The
government does reference past Supreme Court decisions Romer v. Evans and
Lawrence v. Texas which suggested a more searching version of rational review could
invalidate laws involving discrimination based on sexual orientation, but a more
searching rational review would make DOMA unconstitutional for the same reasons as
under heightened security.

Unlike the United States, Windsor argues that Congress did not act rationally or
carefully when enacting DOMA. DOMA is very sweeping, affecting thousands of federal
benefits rather than carefully addressing a specific problem. Also, DOMA departs from
the traditional understanding of how the federal government treats a state recognized
marriage.
Role of Federal Government in Defining Marriage
The Court could place special importance on the fact that this is a federal law about
marriage, an issue that has traditionally been left to the states, as both the United
States and Windsor argue.
BLAG contends that Congress was acting within its
sovereign authority and other groups support DOMA as being allowed under the
Necessary and Proper clause, which is an expansive provision of the Constitution
allowing the government an un-enumerated power so long as that power is necessary
and proper to an enumerated power, which in this case is the federal governments
power to tax.
Federal Scholars argue that DOMA is not necessary and proper for Congress to carry
out any enumerated power as DOMA affects many different kinds of benefits, not just
benefits related to the power of the purse. DOMA could therefore be found to be
improper as a new, sweeping expansion of Congressional power without requiring the
Court to decide whether classifications based on sexual orientation were suspect.
Whether Jurisdictional Concerns Should Prevent the Court From a Decision on the
Merits
Before reaching a decision on the merits, the court could decide that this case is not
properly before the Court and remand it for further proceedings because the Obama
administration has chosen to enforce, but not defend, DOMA. Members of the House of
Repetitive have chosen to defend DOMA on behalf of the government as BLAG. BLAG,
the Obama administration, and Windsor all agree that with BLAG defending DOMA and
the executive branch enforcing DOMA, there is still a live controversy for the Supreme
Court to decide. Windsor has a cause of action against the United States government
for the recovery of the tax refund. While Windsor admits she may not have a separate
claim against BLAG, BLAGs participation ensures that the issues are fully argued and
the issues are sharpened for the Court.
In order to get the alternative view, the Court appointed an amica curiae to argue
against the Courts jurisdiction over Windsors case because of the procedural posture.
The amica curiae argues that BLAG lacks standing because there is no injury to
Congress if DOMA is overturned; members of Congress do not have a personal stake in
this litigation. Also, one house of Congress, or in this case a subsection of one house,
cannot assert an injury for Congress as a whole. The amica curiae also contends that in

defending DOMA, BLAG would be performing an executive act that violates separation
of power principles. The amica curiae further argues that the Executive Branchs appeal
to the judgment of the Second Circuit does not create a case or controversy required
under Article III for the Supreme Court to decide an issue.
Conclusion
In this case, the Supreme Court will determine the Constitutionality of Section 3 of
DOMA. Windsor argues that DOMA is unconstitutional as it tramples on her right to
equal protection under the Fifth Amendment. BLAG argues that DOMA is constitutional
and the law should undergo minimal scrutiny under a rational basis test because sexual
orientation is not a historically protected class. The Courts decision may uphold the
federal governments definition of marriage as between one man and one woman,
which would continue to allow for each state to decide for itself whether to recognize
same-sex unions in its own state and those from other states. Alternatively, the Court
may go so far as to fully overturn DOMA and require that each state legally recognize
same-sex marriages, which would allow for spouses of same-sex partners to receive a
plethora of federal benefits they are currently denied.
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