Federal Lawsuits and DOMA

Throughout the history of this country, whenever the federal government has attached protections or responsibilities to marriage, it has always deferred to the states' determination of whether a couple is validly married. That practice changed in 1996, when the federal government enacted the Defense of Marriage Act (DOMA), which restricts marriage under federal law to a union between one man and one woman. For the first and only time in this country's history, the federal government differentiated between marriages, denying same-sex couples who marry the more than 1000 rights and responsibilities of civil marriage under federal law.

In a ground-breaking decision by President Obama and the Department of Justice (DOJ), on Feb. 23, 2011, Attorney General Eric Holder announced that the President had determined that the unequal treatment of same-sex couples under DOMA violates the Equal Protection clause of the United States Constitution. Holder ordered the DOJ to stop defending DOMA in two cases pending in district courts in the Second Circuit, Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), and Pedersen v. Office of Personnel Management, 310 CV 1750 (VLB) (D. Conn.). This article addresses the immediate and potentially long-ranging impact of that decision on married same-sex couples and their families.

The Defense of Marriage Act

DOMA, passed by Congress in 1996, has two primary applications for same-sex couples. Section 2 provides that no state may be required to recognize or give effect to a valid marriage of a same-sex couple performed in any other state. Section 3, in turn, defines marriage as a legal union between one man and one woman for purposes of all federal laws. Specifically, Section 3 operates to trump states' determinations of whether same-sex couples are married, providing that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. ' 7. The section of DOMA at issue in the two pending cases that led to the DOJ's decision not to defend is Section 3 of DOMA.

DOMA affects 1,139 federal laws that use marital status as a factor for specific federal protections, benefits and responsibilities, including laws relating to income and estate taxes, federal benefits, the right to care for a spouse under the Family and Medical Leave Act, veterans' rights and immigration status. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/04353r.pdf.

The Litigations

In November 2010, two cases were filed in district courts in the Second Circuit concerning the unequal treatment faced by married same-sex couples as a result of DOMA.

In the first case, Windsor v. United States, Edith (“Edie”) Schlain Windsor challenged DOMA's applicability to the federal estate tax. Edie and Thea Spyer shared their lives together as a couple in New York City for 44 years. They got engaged in 1967, before there was any real hope that they could be legally married, and they finally were married 40 years later in Canada in May 2007. Two years after the marriage, Thea passed away, after living for decades with multiple sclerosis, which led to progressive paralysis.

Under New York's long-standing marriage recognition rule, Edie and Thea's valid Canadian marriage is recognized as legally valid in New York, providing them with the same status, responsibilities and protections as heterosexual married couples. However, because of DOMA, the federal government does not recognize their marriage. Thus, although under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes, Edie's inheritance from Thea was taxed as though they were strangers. Edie was required to pay more than $360,000 to the government.

On Nov 9, 2010, Edie, represented by Paul, Weiss, Rifkind, Wharton & Garrison LLP and the American Civil Liberties Union (ACLU), filed her complaint in the Southern District of New York challenging DOMA's Section 3 as violating the Equal Protection Clause of the Fifth Amendment because it recognizes existing marriages of heterosexual couples, but not of same-sex couples.

The same day that the Windsor case was filed, Gay & Lesbian Advocates & Defenders filed a companion case in the District Court of Connecticut on behalf of five married same-sex couples and a widower, captioned Pederson v. Office of Personnel Management, also challenging Section 3 of DOMA as unconstitutional. Specifically, Pedersen challenged the federal government's denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, federal laws for private pension plans, federal laws concerning state pension plans, federal income taxation, Social Security benefits, and employment benefits for federal employees and retirees. As in Windsor, all of the plaintiffs in Pedersen where legally married in their home states and were qualified for their particular programs, but were denied benefits solely because of DOMA.

The DOJ's Decision Not to Defend DOMA

Windsor and Pedersen are not the first cases to challenge the constitutionality of DOMA. Indeed, by the time that these cases were filed, there had been a number of other cases pending in federal district and appellate courts challenging the constitutionality of DOMA. And, although President Obama had announced that he believed DOMA should be repealed by Congress, the DOJ nonetheless defended DOMA in those cases. For example, in Gill v. Office of Personnel Mgmt., No. 10-2204 (1st Cir.), a case raising substantially identical claims to those at issue in Windsor and Pedersen, the government argued as recently as January 2011 that DOMA satisfies rational basis scrutiny, because, it argued, Congress could have rationally concluded that DOMA promotes a legitimate interest in preserving the national status quo while states continue to evaluate and change their laws governing marriages between same-sex couples.

Why, then, did the government change its position now? Windsor and Pedersen are unique in that, unlike in the other pending cases, there is no existing precedent in the Second Circuit concerning the level of review applicable to sexual orientation classifications. Thus, the cases for the first time directly raise the issue for the government of what level of scrutiny should be applied to laws discriminating against persons on the basis of their sexual orientation: rational basis review or what is called “heightened scrutiny.”

Pursuant to the scheduling orders set by the district courts in Windsor and Pedersen, the government was required to serve its motions to dismiss by March 11, 2011. Instead, on Feb. 23, 2011, Attorney General Eric Holder issued the landmark announcement that the DOJ would not defend the statute in either case based on his and the President's determination that Section 3 of DOMA is unconstitutional. As set forth in a letter sent to the Speaker of the House of Representatives by Holder, the President determined that heightened scrutiny was constitutionally mandated for classifications based on sexual orientation in light of, among other things, the significant history of purposeful discrimination against gay and lesbian people and the fact that sexual orientation bears no relation to ability to perform or contribute to society. Under this heightened standard, a classification based on sexual orientation is invalid unless it is substantially related to an important government objective.

DOMA undeniably differentiates between individuals based on sexual orientation, and thus, under the President's analysis, is subject to heightened scrutiny. In other words, DOMA is unconstitutional unless the government can show “at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” See United States v. Virginia, 518 U.S. 515, 532 (1996) (internal quotations and alterations omitted). Because, as the President acknowledged, DOMA is based on no more than moral disapproval of gays and lesbians and their family relationships ' “precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against” ' the President and the DOJ determined that DOMA cannot withstand this level of scrutiny and is unconstitutional. Accordingly, the President directed the DOJ not to defend the statute in Windsor and Pedersen.

Shortly after the announcement that the executive branch would not defend DOMA, the DOJ identified nine additional cases already pending throughout the United States where Section 3 of DOMA had been challenged ' and announced that the DOJ would cease its defense of Section 3 in those cases as well.

What Does the President's Decision Mean for Married Same-Sex Couples?

The significance of the President's and the DOJ's decision not to defend DOMA cannot be overstated. For the first time, the executive branch recognized that classifications based on sexual orientation are entitled to heightened scrutiny and that DOMA is unconstitutional. This determination and the decision not to defend DOMA is a tremendous victory for equal rights activists and a great step toward equality for LGBT individuals. Practically, however, it remains to be seen how this development will affect the pending litigations or the rights of the LGBT individuals more broadly.

Importantly, although the executive branch has announced that it will not defend DOMA, the President has also made clear that the executive branch will continue to enforce DOMA as long as it is in effect. This means that Edie Windsor, the plaintiffs in Pedersen and the thousands of other married same-sex couples in this country will continue be treated as unmarried by the federal government for purposes of federal law. They will continue to be denied the federal benefits and protections provided to married heterosexual couples unless and until DOMA is found by a court to be unconstitutional or is repealed by Congress.

Because DOMA is still in effect, the Windsor and Pedersen cases will continue and the Speaker of the House has indicated that the House of Representatives will likely intervene in the cases and defend DOMA. Although no one can tell how the courts will decide those cases, in light of the President's decision not to defend them, there is reason now more than ever to be hopeful for a positive ruling from the courts. At least one district court in the First Circuit already has held, applying the less stringent rational basis test, that DOMA Section 3 violates the equal protection principles of the Constitution. See Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 387-97 (D. Mass. 2010). If the courts in the Second Circuit adopt the heightened standard advocated by Windsor, the Pederson plaintiffs and now the executive branch, it would be highly unlikely that DOMA Section 3 could withstand constitutional scrutiny. A decision that Section 3 is unconstitutional would be a significant victory for marriage equality. However, such a ruling would likely still leave lingering uncertainty for married same-sex couples. A decision that Section 3, as opposed to Section 2, of DOMA is unconstitutional would mean that same-sex couples whose marriages are recognized as valid in their home state would have their marriages recognized by the federal government. It would not require any state to marry same-sex couples or to recognize valid marriages between same-sex couples.

Because the vast majority of states currently do not recognize marriages of same-sex couples, this ruling would be of limited effect. Today, only five states (Massachusetts, Connecticut, Iowa, Vermont and New Hampshire) and the District of Columbia permit same-sex couples to enter into a valid civil marriage and only a few other states, including New York, recognize valid out-of-state marriages between same-sex couples. Those couples living outside of any of these states still would not enjoy the benefits of marriage under state or federal law, even if Section 3 of DOMA is struck down. Indeed, even the rights of couples within those states are tenuous. Given the continued political debate surrounding the issues of marriage for same-sex couples, it will likely remain uncertain for some time whether even those states that do recognize marriages between same-sex couples will continue to do so for the foreseeable future.

Same-sex couples will only achieve real certainty when they are provided full marriage equality under the law. Although that would not be an immediate consequence of a victory in Windsor or Pedersen, a positive decision in those cases could pave the way for greater marriage equality. To be sure, the same constitutional principles that underlie a DOMA challenge apply to a challenge to a state's prohibition on marriage between same-sex couples. Indeed, if the courts agree with the President that heightened scrutiny applies to classifications based on sexual orientation, that decision could work to limit other forms of discrimination suffered by LGBT individuals in this country.

Perhaps the greatest impact of the President's decision can be the effect it has on the political discourse surrounding marriage equality and social acceptance of LGBT individuals and their families. Proof of that impact was almost immediate. On March 16, on the heels of the President's announcement, Rep. Jerrold Nadler (D-NY), along with 105 co-sponsors, re-introduced the aptly named Respect for Marriage Act, which seeks a repeal of DOMA to ensure that couples who assume the serious legal duties of marriage are treated fairly under federal law. The Respect for Marriage Act also could provide the certainty for same-sex couples now absent, as it would provide that an individual would be considered married if that individual's marriage is valid in the state where the marriage is entered into ' not simply the state where he or she resides.

Conclusion

Although it remains to be seen how the President's decision to stop defending DOMA will ultimately affect the rights of married same-sex couples, it gives renewed hope for marriage equality in this country and is an important step in fulfilling the promise of equal treatment under the Constitution. We look forward to watching the progress to come.

Roberta A. Kaplan, a partner in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison LLP, has been chosen as one of the top “40 Under 40″ lawyers and as one of the 500 leading litigators in the U.S. In addition to her commercial litigation practice, Ms. Kaplan served as counsel in one of the two companion cases asserting, under the New York State Constitution, the right of same-sex couples to marry in New York. Julie E. Fink is an associate in the firm's litigation department.

Throughout the history of this country, whenever the federal government has attached protections or responsibilities to marriage, it has always deferred to the states' determination of whether a couple is validly married. That practice changed in 1996, when the federal government enacted the Defense of Marriage Act (DOMA), which restricts marriage under federal law to a union between one man and one woman. For the first and only time in this country's history, the federal government differentiated between marriages, denying same-sex couples who marry the more than 1000 rights and responsibilities of civil marriage under federal law.

In a ground-breaking decision by President Obama and the Department of Justice (DOJ), on Feb. 23, 2011, Attorney General Eric Holder announced that the President had determined that the unequal treatment of same-sex couples under DOMA violates the Equal Protection clause of the United States Constitution. Holder ordered the DOJ to stop defending DOMA in two cases pending in district courts in the Second Circuit, Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), and Pedersen v. Office of Personnel Management, 310 CV 1750 (VLB) (D. Conn.). This article addresses the immediate and potentially long-ranging impact of that decision on married same-sex couples and their families.

The Defense of Marriage Act

DOMA, passed by Congress in 1996, has two primary applications for same-sex couples. Section 2 provides that no state may be required to recognize or give effect to a valid marriage of a same-sex couple performed in any other state. Section 3, in turn, defines marriage as a legal union between one man and one woman for purposes of all federal laws. Specifically, Section 3 operates to trump states' determinations of whether same-sex couples are married, providing that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. ' 7. The section of DOMA at issue in the two pending cases that led to the DOJ's decision not to defend is Section 3 of DOMA.

DOMA affects 1,139 federal laws that use marital status as a factor for specific federal protections, benefits and responsibilities, including laws relating to income and estate taxes, federal benefits, the right to care for a spouse under the Family and Medical Leave Act, veterans' rights and immigration status. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/04353r.pdf.

The Litigations

In November 2010, two cases were filed in district courts in the Second Circuit concerning the unequal treatment faced by married same-sex couples as a result of DOMA.

In the first case, Windsor v. United States, Edith (“Edie”) Schlain Windsor challenged DOMA's applicability to the federal estate tax. Edie and Thea Spyer shared their lives together as a couple in New York City for 44 years. They got engaged in 1967, before there was any real hope that they could be legally married, and they finally were married 40 years later in Canada in May 2007. Two years after the marriage, Thea passed away, after living for decades with multiple sclerosis, which led to progressive paralysis.

Under New York's long-standing marriage recognition rule, Edie and Thea's valid Canadian marriage is recognized as legally valid in New York, providing them with the same status, responsibilities and protections as heterosexual married couples. However, because of DOMA, the federal government does not recognize their marriage. Thus, although under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes, Edie's inheritance from Thea was taxed as though they were strangers. Edie was required to pay more than $360,000 to the government.

On Nov 9, 2010, Edie, represented by Paul, Weiss, Rifkind, Wharton & Garrison LLP and the American Civil Liberties Union (ACLU), filed her complaint in the Southern District of New York challenging DOMA's Section 3 as violating the Equal Protection Clause of the Fifth Amendment because it recognizes existing marriages of heterosexual couples, but not of same-sex couples.

The same day that the Windsor case was filed, Gay & Lesbian Advocates & Defenders filed a companion case in the District Court of Connecticut on behalf of five married same-sex couples and a widower, captioned Pederson v. Office of Personnel Management, also challenging Section 3 of DOMA as unconstitutional. Specifically, Pedersen challenged the federal government's denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, federal laws for private pension plans, federal laws concerning state pension plans, federal income taxation, Social Security benefits, and employment benefits for federal employees and retirees. As in Windsor, all of the plaintiffs in Pedersen where legally married in their home states and were qualified for their particular programs, but were denied benefits solely because of DOMA.

The DOJ's Decision Not to Defend DOMA

Windsor and Pedersen are not the first cases to challenge the constitutionality of DOMA. Indeed, by the time that these cases were filed, there had been a number of other cases pending in federal district and appellate courts challenging the constitutionality of DOMA. And, although President Obama had announced that he believed DOMA should be repealed by Congress, the DOJ nonetheless defended DOMA in those cases. For example, in Gill v. Office of Personnel Mgmt., No. 10-2204 (1st Cir.), a case raising substantially identical claims to those at issue in Windsor and Pedersen, the government argued as recently as January 2011 that DOMA satisfies rational basis scrutiny, because, it argued, Congress could have rationally concluded that DOMA promotes a legitimate interest in preserving the national status quo while states continue to evaluate and change their laws governing marriages between same-sex couples.

Why, then, did the government change its position now? Windsor and Pedersen are unique in that, unlike in the other pending cases, there is no existing precedent in the Second Circuit concerning the level of review applicable to sexual orientation classifications. Thus, the cases for the first time directly raise the issue for the government of what level of scrutiny should be applied to laws discriminating against persons on the basis of their sexual orientation: rational basis review or what is called “heightened scrutiny.”

Pursuant to the scheduling orders set by the district courts in Windsor and Pedersen, the government was required to serve its motions to dismiss by March 11, 2011. Instead, on Feb. 23, 2011, Attorney General Eric Holder issued the landmark announcement that the DOJ would not defend the statute in either case based on his and the President's determination that Section 3 of DOMA is unconstitutional. As set forth in a letter sent to the Speaker of the House of Representatives by Holder, the President determined that heightened scrutiny was constitutionally mandated for classifications based on sexual orientation in light of, among other things, the significant history of purposeful discrimination against gay and lesbian people and the fact that sexual orientation bears no relation to ability to perform or contribute to society. Under this heightened standard, a classification based on sexual orientation is invalid unless it is substantially related to an important government objective.

DOMA undeniably differentiates between individuals based on sexual orientation, and thus, under the President's analysis, is subject to heightened scrutiny. In other words, DOMA is unconstitutional unless the government can show “at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” See United States v. Virginia , 518 U.S. 515, 532 (1996) (internal quotations and alterations omitted). Because, as the President acknowledged, DOMA is based on no more than moral disapproval of gays and lesbians and their family relationships ' “precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against” ' the President and the DOJ determined that DOMA cannot withstand this level of scrutiny and is unconstitutional. Accordingly, the President directed the DOJ not to defend the statute in Windsor and Pedersen.

Shortly after the announcement that the executive branch would not defend DOMA, the DOJ identified nine additional cases already pending throughout the United States where Section 3 of DOMA had been challenged ' and announced that the DOJ would cease its defense of Section 3 in those cases as well.

What Does the President's Decision Mean for Married Same-Sex Couples?

The significance of the President's and the DOJ's decision not to defend DOMA cannot be overstated. For the first time, the executive branch recognized that classifications based on sexual orientation are entitled to heightened scrutiny and that DOMA is unconstitutional. This determination and the decision not to defend DOMA is a tremendous victory for equal rights activists and a great step toward equality for LGBT individuals. Practically, however, it remains to be seen how this development will affect the pending litigations or the rights of the LGBT individuals more broadly.

Importantly, although the executive branch has announced that it will not defend DOMA, the President has also made clear that the executive branch will continue to enforce DOMA as long as it is in effect. This means that Edie Windsor, the plaintiffs in Pedersen and the thousands of other married same-sex couples in this country will continue be treated as unmarried by the federal government for purposes of federal law. They will continue to be denied the federal benefits and protections provided to married heterosexual couples unless and until DOMA is found by a court to be unconstitutional or is repealed by Congress.

Because DOMA is still in effect, the Windsor and Pedersen cases will continue and the Speaker of the House has indicated that the House of Representatives will likely intervene in the cases and defend DOMA. Although no one can tell how the courts will decide those cases, in light of the President's decision not to defend them, there is reason now more than ever to be hopeful for a positive ruling from the courts. At least one district court in the First Circuit already has held, applying the less stringent rational basis test, that DOMA Section 3 violates the equal protection principles of the Constitution. See Gill v. Office of Personnel Mgmt. , 699 F. Supp. 2d 374, 387-97 (D. Mass. 2010). If the courts in the Second Circuit adopt the heightened standard advocated by Windsor, the Pederson plaintiffs and now the executive branch, it would be highly unlikely that DOMA Section 3 could withstand constitutional scrutiny. A decision that Section 3 is unconstitutional would be a significant victory for marriage equality. However, such a ruling would likely still leave lingering uncertainty for married same-sex couples. A decision that Section 3, as opposed to Section 2, of DOMA is unconstitutional would mean that same-sex couples whose marriages are recognized as valid in their home state would have their marriages recognized by the federal government. It would not require any state to marry same-sex couples or to recognize valid marriages between same-sex couples.

Because the vast majority of states currently do not recognize marriages of same-sex couples, this ruling would be of limited effect. Today, only five states (Massachusetts, Connecticut, Iowa, Vermont and New Hampshire) and the District of Columbia permit same-sex couples to enter into a valid civil marriage and only a few other states, including New York, recognize valid out-of-state marriages between same-sex couples. Those couples living outside of any of these states still would not enjoy the benefits of marriage under state or federal law, even if Section 3 of DOMA is struck down. Indeed, even the rights of couples within those states are tenuous. Given the continued political debate surrounding the issues of marriage for same-sex couples, it will likely remain uncertain for some time whether even those states that do recognize marriages between same-sex couples will continue to do so for the foreseeable future.

Same-sex couples will only achieve real certainty when they are provided full marriage equality under the law. Although that would not be an immediate consequence of a victory in Windsor or Pedersen, a positive decision in those cases could pave the way for greater marriage equality. To be sure, the same constitutional principles that underlie a DOMA challenge apply to a challenge to a state's prohibition on marriage between same-sex couples. Indeed, if the courts agree with the President that heightened scrutiny applies to classifications based on sexual orientation, that decision could work to limit other forms of discrimination suffered by LGBT individuals in this country.

Perhaps the greatest impact of the President's decision can be the effect it has on the political discourse surrounding marriage equality and social acceptance of LGBT individuals and their families. Proof of that impact was almost immediate. On March 16, on the heels of the President's announcement, Rep. Jerrold Nadler (D-NY), along with 105 co-sponsors, re-introduced the aptly named Respect for Marriage Act, which seeks a repeal of DOMA to ensure that couples who assume the serious legal duties of marriage are treated fairly under federal law. The Respect for Marriage Act also could provide the certainty for same-sex couples now absent, as it would provide that an individual would be considered married if that individual's marriage is valid in the state where the marriage is entered into ' not simply the state where he or she resides.

Conclusion

Although it remains to be seen how the President's decision to stop defending DOMA will ultimately affect the rights of married same-sex couples, it gives renewed hope for marriage equality in this country and is an important step in fulfilling the promise of equal treatment under the Constitution. We look forward to watching the progress to come.

Roberta A. Kaplan, a partner in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison LLP, has been chosen as one of the top “40 Under 40″ lawyers and as one of the 500 leading litigators in the U.S. In addition to her commercial litigation practice, Ms. Kaplan served as counsel in one of the two companion cases asserting, under the New York State Constitution, the right of same-sex couples to marry in New York. Julie E. Fink is an associate in the firm's litigation department.