Federal Court Strikes Down Defense of Marriage Act

In one of the most important gay rights cases ever decided, a federal appeals court in Manhattan ruled in October 2012 that the Defense of Marriage Act is unconstitutional. The case is significant because the legal reasoning makes it easier for gays and lesbians to challenge the constitutionality of government policies and rules that discriminate on the basis of sexual orientation.

Enacted in 1996, the Defense of Marriage Act (DOMA) defines marriage as one-man/one-woman. This means that same-sex couples do not gain the same financial benefits as heterosexual marriages. For the plaintiff in Windsor v. United States, this meant that, when her partner died, she was denied the spousal deduction for federal estate taxes in the amount of $363,000. She sued in federal court, challenging the constitutionality of DOMA under the Equal Protection Clause of the United States Constitution. The Second Circuit Court of Appeals agreed with her and DOMA was struck down.

Like many ground-breaking court decisions, the Windsor case arose from an otherwise routine dispute against the government. The American Civil Liberties Union, which represented the plaintiff, summarized the case as follows. Edie Windsor and Thea Spyer shared their lives together as a couple in New York City for 44 years. They got engaged in 1967, a couple of years after becoming a couple, and were finally married in Canada in May 2007. Two years later, Thea passed away, after living for decades with multiple sclerosis, which led to progressive paralysis. When Thea died, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes.

While federal tax law allows the surviving spouse to avoid estate taxes, DOMA does not apply to same-sex couples. Although Edie and Thea were married in Canada and New York recognized their relationship, Edie was stuck with a fortune in estate taxes that an opposite sex spouse would not have had to pay. Hence the lawsuit.

The Equal Protection Clause

Enacted in 1868 in the aftermath of the Civil War, the Equal Protection Clause is part of the Fourteenth Amendment. Like most constitutional provisions, the Equal Protection Clause is brief: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” However, although the clause is phrased as an absolute, the courts have not interpreted it that way. Most laws do not violate the Equal Protection Clause so long as the legislature had any reasonable or conceivable basis to pass the law, even if it distinguishes between different classes of people and even if the law is a bad idea. All laws favor someone or something over something else, so, in most cases, “rational basis” review means the legislature can do what it pleases. Economic legislation that favors one class of individuals over another is almost always constitutional under the Equal Protection Clause.

Courts treat equal protection claims differently based on the nature of the discrimination or unequal treatment. One of the reasons the Supreme Court gives the government much leeway in treating people differently under the Equal Protection Clause is that, under American democratic principles, majority rules. In 1973, for example, the Supreme Court held that laws that discriminate against the poor do not violate the Constitution. But the courts have also identified certain classes that are protected from discrimination under the Constitution. Majority rule cannot always proceed unfettered. A counter-majoritarian principle courses through constitutional law in certain cases.

The Supreme Court began to affirmatively protect certain groups under the Equal Protection Clause in 1938. The Court in United States v. Caroline Products said that, “[P]rejudice against discrete and insular minorities may be a special condition, which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” In other words, “discrete and insular minorities” are protected from government-sponsored discrimination under the Constitution.

As noted above, the poor do not gain special protection under the Constitution. But the Supreme Court quickly applied the “discrete and insular minorities” standard to African Americans and others who suffered discrimination on the basis of national origin. It is now a settled constitutional principle that discrimination on the basis of race or national origin cannot be justified without a compelling government interest. That compelling interest must be accomplished through the least restrictive means possible. Since the courts closely scrutinize this kind of discrimination to ensure that it satisfies constitutional standards, courts call this the “strict scrutiny” test. Under strict scrutiny, nearly all government-sponsored discrimination on the basis of race or national origin is unconstitutional. An example of strict scrutiny in striking down a racist law was in Loving v. Virginia, when the Supreme Court, in 1967, held that a prohibition against inter-racial marriage was unconstitutional.

As there was no compelling reason to prohibit blacks from marrying whites, the Virginia law was struck down. However, as Justice Sandra Day O’Connor noted in 1995, strict scrutiny is not “strict in theory and fatal in fact.” Some racial classifications satisfy the compelling interest test and the example that Justice O’Connor provided was government-sponsored affirmative action to remedy pervasive and systemic discrimination by a governmental entity.

In the 1970s, the Supreme Court added an important wrinkle to its equal protection jurisprudence. Recognizing in 1973 that “our Nation has had a long and unfortunate history of sex discrimination,” the Court ruled three years later that government-sponsored discrimination against women is reviewed under “intermediate scrutiny.” Under this level of court review, gender discrimination is constitutional only if the government can show that the discrimination is substantially related to an important government interest. Intermediate scrutiny is less predictable or rigid than strict scrutiny and it grants the government more flexibility in regulating differences between men and women based on, for example, physical strength. On the other hand, stereotypes about women will not survive constitutional review, and it is also no justification that a challenged policy is longstanding, i.e., “we’ve always done it this way.” Rather, the government needs an “exceedingly persuasive justification” for discriminating against women. A recent example of the Court’s application of intermediate scrutiny was United States v. Virginia, when the Court in 1996 held that the Virginia Military Institute’s sex-based admission violated the Constitution even though the state had proposed a parallel school for women.

Protecting Gays and Lesbians

What’s the standard of review for discrimination against gays and lesbians? The Supreme Court has never taken on that issue. For years, discrimination on the basis of sexual orientation was not accorded any degree of heightened court scrutiny under the Constitution and for that reason gays and lesbians were not deemed a suspect class under the Equal Protection Clause. That meant that governmental discrimination on the basis of sexual orientation was usually legal. However, on October 18, 2012, the Second Circuit Court of Appeals—one level below the Supreme Court—surprised the legal community in finding that discrimination on the basis of sexual orientation should not be reviewed under the lenient rational basis review but, instead, the same intermediate scrutiny that governs review of gender discrimination claims. Gays and lesbians are now a quasi-suspect class under the Constitution. This is significant, and it makes Windsor v. United States one of the most important legal developments in the march toward equality. Under this ruling, gays and lesbians have new protections against discrimination.

A ruling like this was unthinkable a generation ago. Even more surprising, Windsor was written by one of the most conservative judges on the Court of Appeals, Dennis Jacobs, who in 2008 criticized pro bono litigation, stating that, “we should as a profession consider dispassionately whether some public interest litigation has become an anti-social influence, whether the promotion of social and political agendas in the courts is in any real sense a service to the public, and whether the public interest would be best served by initiatives to abate somewhat the power of judges and lawyers and the legal profession as an interest group.”

In reviewing the constitutionality of the Defense of Marriage Act, Judge Jacobs noted that, “the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged.” But under the counter-majoritarian principle that governs heightened judicial scrutiny under the Equal Protection Clause, the fact that DOMA had bi-partisan support and reflects long-held principles does not matter.

The Second Circuit summarized the multi-part test for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause: “The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically ‘subjected to discrimination’; B) whether the class has a defining characteristic that ‘frequently bears [a] relation to ability to perform or contribute to society’; C) whether the class exhibits ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group’; and D) whether the class is ‘a minority or politically powerless.’”

Under this multi-part standard, gays and lesbians satisfy this test and are quasi-suspect classes in the Second Circuit, which means that discrimination against gays and lesbians are easier to challenge in court. The Court of Appeals concludes: “In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”

The first factor is not a close call for the Court of Appeals. “It is easy to conclude that homosexuals have suffered a history of discrimination.... Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal.” True, it was not until 2003 that the Supreme Court said that laws prohibiting gay sex violate the Constitution and that such laws “demean” the existence of same-sex couples and “controlled their destiny.” In addition, under the second factor, “homosexuality bears no relation to any ability to perform or contribute to society.” The court added, “There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance.” Under the third factor, the Court finds that “homosexuality is a sufficiently discernible characteristic to define a discrete minority class.” In other words, “The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but ...there is nothing amorphous, capricious, or tentative about their sexual orientation.” Finally, under the fourth factor, gays and lesbians do not have the political power to insulate themselves from discrimination. “It is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private, which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.”

Now that the Court of Appeals has decided that discrimination against same-sex couples is reviewed under heightened judicial scrutiny, the reasons offered in defense of DOMA’s spousal-benefits law are not good enough to save the statute, and the court strikes it down. These reasons include: (1) the need to maintain a uniform definition of marriage; (2) protecting the public fisc and (3) preserving the traditional definition of marriage. Saving money and promoting long-held social views are not enough to satisfy heightened judicial review under the Equal Protection Clause. As to the third factor, “tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws.” The Court also says that it’s no justification to say that Congress wanted to encourage responsible procreation (an argument that many states have made in justifying the prohibition against same-sex marriage). “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.”

Next Stop:  Supreme Court

The trend in favor of gay rights over the last 20 years includes two prominent Supreme Court cases: its ruling in Romer v. Evans (1996) that struck down a voter initiative that prohibited the state of Colorado from protecting gay rights, and its ruling in 2003 that prohibited the government from banning same-sex activity. The 2003 ruling, Lawrence v. Texas, overturned a contrary Supreme Court ruling from 1986. And, of course, one state after another is legalizing same-sex marriage.

Yet, while these developments have advanced gay rights at the state level, few courts have rejected federal restrictions against gay rights. The Second Circuit is not the first federal court to strike down DOMA. On May 31, 2012, a federal appeals court in Boston also held that DOMA was unconstitutional, although it did not do so under heightened judicial scrutiny. The Supreme Court will almost certainly take up this issue, which is the normal course of action when a court strikes down a federal law as unconstitutional. How the Justices rule on this issue is a matter of speculation, of course. The Supreme Court is divided between five Republican-appointed Justices and four Democrats. But on gay rights issues, one Republican, Justice Anthony Kennedy, has twice struck down discriminatory laws, having written the decisions in Romer and Lawrence. That a Reagan Republican might tip the scales in favor of the right to same-sex marriage under the Constitution says all you need to know about the rapid developments in the area of gay rights. 

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Stephen Bergstein is a lawyer in upstate New York.