Second Circuit Declares DOMA Unconstitutional

Representing the widow at the heart of the case, Edie Windsor, was Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison. She asserted that rational basis scrutiny was not appropriate, and that a heightened form should be employed; yet, no matter what level of scrutiny the court determines is appropriate, Kaplan argued, DOMA still should be declared unconstitutional.

Acting Assistant Attorney General Stuart Delery appeared for the Obama administration, in the unusual position of having to argue that a federal law should be subjected to heightened constitutional scrutiny; and that it should fail that test. He asserted that the purpose of heightened constitutional scrutiny ' which asks whether a law or policy is substantially related to a legitimate government interest ' is to “smoke[] out improper rationalles.” In the case of DOMA's section 3, which prohibits the federal government from recognizing same-sex marriages, he contended that it was “crystal clear” that such an improper rationale was its impetus, as the legislation was “motivated in significant part by disapproval of gay and lesbian people,” whose sexual orientation is “deeply ingrained.” The court asked Delery to explain how the government could contend that gays and lesbians lack political power, in light of the facts that the Obama administration backed them in this action, along with 145 members of Congress who joined in an amicus brief filed in support of Windsor's DOMA challenge. Delery answered, “It's still the case that the rights of gay and lesbian people usually lose when they are put up to a vote.”

Keeping the Focus Where It Belongs

In cases like this ' those that present constitutional questions about which the public, on both sides of the issue, feels passionately ' it sometimes seems that the greater good is the question in issue. But real people with a great deal personally at stake are also involved. At the Second Circuit hearing, Kaplan made sure to keep the spotlight pointed on her client, urging the court to remember that “[t]he single question is whether Section 3 of DOMA is unconstitutional as it applies to an 83-year-old lesbian widow who had to pay $353,000 in estate taxes and wants her money back.”

Level of Scrutiny

After the close of arguments, it took the Second Circuit Court of Appeals only weeks to issue its decision. In declaring that DOMA unconstitutionally violates the Equal Protection Clause, the court decided it should not employ the least restrictive form of constitutional review ' the rational basis test ' as BLAG and its amici had urged. They had offered as rational bases for the law the protection of traditional marriage, the encouragement of responsible procreation, savings to the federal government and uniform administration of federal law across the several states. The plaintiff and her supporters, as the side challenging DOMA's constitutionality, would have had the burden of disproving each of these rationales (Heller v. Doe, 509 U.S. 312 (1993)), which the Second Circuit noted would have left Windsor with a very heavy burden to bear in light of the facts 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 this was not to be. Instead, the Second Circuit determined that review of Section 3 of DOMA should be accomplished using the heightened scrutiny standard employed when a law impacts a “suspect class.” The U.S. Supreme Court has set out four factors for determining if a group can be categorized as a suspect class. The Second Circuit found that homosexuals, as a group, met all four of these criteria because: 1) They have historically been persecuted and suffered discrimination; 2) Their homosexuality has no relation to their ability to contribute to society; 3) They are a distinct group with distinguishing characteristics that are not immutable (even if they are not, as here, always obvious); and 4) They are a politically weakened minority on account of their homosexuality.

On the first of these two points no real argument could be made by the defenders of DOMA. It is manifestly clear that homosexuals have suffered discrimination throughout history. And, unlike mental retardation or extreme age ' classifications that have been found valid because members of these groups are likely to be unable to perform on a par with others not so afflicted ' sexual orientation cannot be said to hinder a person's ability to contribute to society.

The court's discussion of the third factor is particularly interesting. The Supreme Court discussed this aspect of a suspect classification in Bowen v. Gilliard, 483 U.S. 587 (1987), where it explained that the question to be asked is whether a class's members exhibit “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” BLAG argued that homosexuality is not necessarily fixed (immutable) but can exist in degrees (as, for example, when a person is bisexual) or can change over time, and that the fact that a person is homosexual is not always obvious to the casual observer. While conceding that these things might be true, the court nevertheless found that this factor must be weighed in the plaintiff's favor. The Second Circuit compared the classification of a person as homosexual to a classification based on alienage, illegitimacy or national origin ' all of which have previously been determined to be subject to heightened scrutiny. “What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest,” stated the court. “Thus a person of illegitimate birth may keep that status private, and ensure that no outward sign discloses the status in social settings or in the workplace, or on the subway. But when such a person applies for Social Security benefits on the death of a parent (for example), the illegitimate status becomes manifest. The characteristic is necessarily revealed in order to exercise a legal right. Similarly, sexual preference is necessarily disclosed when two persons of the same sex apply for a marriage license (as they are legally permitted to do in New York), or when a surviving spouse of a same-sex marriage seeks the benefit of the spousal deduction.” That is what plaintiff Windsor had done, and that is when the discrimination imposed by DOMA was imposed upon her.

Turning to the fourth point, the court compared the status of the political power of homosexuals with that of women at the time that the Supreme Court decided Frontiero v. Richardson, 411 U.S. 677 (1973). (In Frontiero, the Court employed heightened scrutiny to overturn an Air Force policy that said the husbands of female military service members had to prove their economic dependence on their wives in order to receive the same family benefits that were automatically given to the wives of servicemen.) As was the case for women in 1973, many strides have now been made in ensuring equality under the law for homosexual citizens. But also as was the case for women in 1973, much insidious discrimination against gay members of our society still takes place. Thus, the court determined that, today, “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

Applying the Test

Since heightened scrutiny was to be applied to the classification in Windsor, DOMA's Section 3 could be upheld only if it was found to be “substantially related to an important government interest.” Clark v. Jeter, 486 U.S.456 (1988). According to United States v. Virginia, 518 U.S. 515 (1996), the term “substantially related” means that the explanation must be “exceedingly persuasive,” and “[t]he justification must be genuine, not hypothesized or invented post hoc in response to litigation.”

The court then looked at and rejected all the justifications BLAG offered on behalf of Section 3:

Uniformity of the definition of marriage ' The court rejected this basis, in light of the long-standing federal policy of deferring to the states to define the marriage ' whether these definitions conformed with one another or not. Thus, the court concluded that “[b]ecause DOMA is an unprecedented breach of longstanding deference to
federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”

Protecting federal funds ' This argument was rebuffed by the court after it noted that, while the federal government might have to spend more, or take in less, money in some cases if same-sex marriage were recognized, in other cases it would spend less or take in more funds. In addition, many legal impacts of DOMA on same-sex married couples have nothing to do with federal financial matters.

Preserving a traditional understanding of marriage ' The court compared this argument to the ones made in favor of state-imposed bans on inter-racial marriage and sodomy. Both types of prohibitions were struck down by the Supreme Court, despite the fact that the majority of citizens in the states that proscribed those practices deemed them immoral. In the same manner, the Second Circuit determined that the preservation of a traditional understanding of marriage, based on a set of moral beliefs held by a majority, was not a persuasive justification for DOMA.

Encouraging Responsible Procreation ' This argument the court dispatched in very short order, finding, as other courts have previously, that DOMA does nothing to encourage opposite-sex couples to procreate responsibly.

Having found that DOMA's classification of same-sex spouses was not substantially related to any important government interests, the Second Circuit concluded that Section 3 of DOMA violates the equal protection clause, and it is therefore unconstitutional.

Moving Forward

With another defeat for BLAG in its defense of DOMA, the question arises whether it should continue the fight. Following the Windsor decision, House Minority Leader, Rep. Nancy Pelosi (D-CA), released a statement calling for BLAG to drop its “frivolous, taxpayer-funded lawsuits” in defense of a law that “den[ies] basic civil rights to an entire group” of Americans. Pelosi, Nancy (Oct. 16, 2012). Pelosi Statement on Speaker Boehner's Waste of $1.5 Million in Taxpayer Dollars Defending DOMA [press release]. Retrieved from: http://pelosi.house.gov/news/press-releases/2012/10/pelosi-statement-on-speaker-boehners-waste-of-15-million-in-taxpayer-dollars-defending-doma.shtml. Speaker of the House John Boehner (R-OH) has suggested that the money needed for DOMA's defense should be taken from the funds allocated to the Department of Justice (DOJ), which he claims is shirking its duty to defend a duly-enacted federal law. Boehner, John (April 18, 2011). Boehner Says DOJ Funds Should Be Cut To Pay For DOMA Defense; Asks Leader Pelosi To Join In Supporting Redirection of Funds [press release]. Retrieved from: http://boehner.house.gov/news/documentsingle.aspx?DocumentID=237443.

Whatever the financial arrangements, the fact remains that federal court after federal court has declared DOMA unconstitutional, yet the law remains on the books and impacts same-sex married couples and their families in myriad aspects of their lives. Thus, although the Supreme Court has held back for some time, the Windsor decision has added to the pressure for it to take up the question of DOMA's constitutionality sooner rather than later.

Janice G. Inman is Editor-in-Chief of this newsletter.

On Sept. 29, the U.S. Court of Appeals for the Second Circuit heard arguments for and against the application of the1996 Defense of Marriage Act (DOMA) to the case of a New York widow who had to pay federal inheritance taxes that would not have been levied had she been married to a man, and not a woman. In June, Southern District Judge Barbara Jones had declared in Windsor v. United States, 2012 U.S. App. LEXIS 21785 (2d Cir. 10/18/12), that DOMA is an unconstitutional violation of the equal protection clause, concluding the law bore no relationship to the preservation of marriage. On Oct. 18, the Second Circuit announced its agreement.

Before the Court of Appeals

The Republican House majority took up the defense of DOMA after the Obama administration last year abandoned the effort, agreeing with the legislation's opponents that it is not a constitutionally defensible law. Arguing for the validity of the law on behalf of the House's so-called Bipartisan Legal Advisory Group (BLAG) before the three-member panel of the Second Circuit was former Solicitor General Paul Clement, who said that DOMA promoted uniformity at the federal level while allowing the states to retain their prerogative of defining marriage at the state level. He urged the court to apply the least restrictive level of constitutional scrutiny to DOMA: the rational basis test, which asks only whether the legislation bears a rational relationship to a legitimate government interest.

Representing the widow at the heart of the case, Edie Windsor, was Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison. She asserted that rational basis scrutiny was not appropriate, and that a heightened form should be employed; yet, no matter what level of scrutiny the court determines is appropriate, Kaplan argued, DOMA still should be declared unconstitutional.

Acting Assistant Attorney General Stuart Delery appeared for the Obama administration, in the unusual position of having to argue that a federal law should be subjected to heightened constitutional scrutiny; and that it should fail that test. He asserted that the purpose of heightened constitutional scrutiny ' which asks whether a law or policy is substantially related to a legitimate government interest ' is to “smoke[] out improper rationalles.” In the case of DOMA's section 3, which prohibits the federal government from recognizing same-sex marriages, he contended that it was “crystal clear” that such an improper rationale was its impetus, as the legislation was “motivated in significant part by disapproval of gay and lesbian people,” whose sexual orientation is “deeply ingrained.” The court asked Delery to explain how the government could contend that gays and lesbians lack political power, in light of the facts that the Obama administration backed them in this action, along with 145 members of Congress who joined in an amicus brief filed in support of Windsor's DOMA challenge. Delery answered, “It's still the case that the rights of gay and lesbian people usually lose when they are put up to a vote.”

Keeping the Focus Where It Belongs

In cases like this ' those that present constitutional questions about which the public, on both sides of the issue, feels passionately ' it sometimes seems that the greater good is the question in issue. But real people with a great deal personally at stake are also involved. At the Second Circuit hearing, Kaplan made sure to keep the spotlight pointed on her client, urging the court to remember that “[t]he single question is whether Section 3 of DOMA is unconstitutional as it applies to an 83-year-old lesbian widow who had to pay $353,000 in estate taxes and wants her money back.”

Level of Scrutiny

After the close of arguments, it took the Second Circuit Court of Appeals only weeks to issue its decision. In declaring that DOMA unconstitutionally violates the Equal Protection Clause, the court decided it should not employ the least restrictive form of constitutional review ' the rational basis test ' as BLAG and its amici had urged. They had offered as rational bases for the law the protection of traditional marriage, the encouragement of responsible procreation, savings to the federal government and uniform administration of federal law across the several states. The plaintiff and her supporters, as the side challenging DOMA's constitutionality, would have had the burden of disproving each of these rationales ( Heller v. Doe , 509 U.S. 312 (1993)), which the Second Circuit noted would have left Windsor with a very heavy burden to bear in light of the facts 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 this was not to be. Instead, the Second Circuit determined that review of Section 3 of DOMA should be accomplished using the heightened scrutiny standard employed when a law impacts a “suspect class.” The U.S. Supreme Court has set out four factors for determining if a group can be categorized as a suspect class. The Second Circuit found that homosexuals, as a group, met all four of these criteria because: 1) They have historically been persecuted and suffered discrimination; 2) Their homosexuality has no relation to their ability to contribute to society; 3) They are a distinct group with distinguishing characteristics that are not immutable (even if they are not, as here, always obvious); and 4) They are a politically weakened minority on account of their homosexuality.

On the first of these two points no real argument could be made by the defenders of DOMA. It is manifestly clear that homosexuals have suffered discrimination throughout history. And, unlike mental retardation or extreme age ' classifications that have been found valid because members of these groups are likely to be unable to perform on a par with others not so afflicted ' sexual orientation cannot be said to hinder a person's ability to contribute to society.

The court's discussion of the third factor is particularly interesting. The Supreme Court discussed this aspect of a suspect classification in Bowen v. Gilliard , 483 U.S. 587 (1987), where it explained that the question to be asked is whether a class's members exhibit “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” BLAG argued that homosexuality is not necessarily fixed (immutable) but can exist in degrees (as, for example, when a person is bisexual) or can change over time, and that the fact that a person is homosexual is not always obvious to the casual observer. While conceding that these things might be true, the court nevertheless found that this factor must be weighed in the plaintiff's favor. The Second Circuit compared the classification of a person as homosexual to a classification based on alienage, illegitimacy or national origin ' all of which have previously been determined to be subject to heightened scrutiny. “What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest,” stated the court. “Thus a person of illegitimate birth may keep that status private, and ensure that no outward sign discloses the status in social settings or in the workplace, or on the subway. But when such a person applies for Social Security benefits on the death of a parent (for example), the illegitimate status becomes manifest. The characteristic is necessarily revealed in order to exercise a legal right. Similarly, sexual preference is necessarily disclosed when two persons of the same sex apply for a marriage license (as they are legally permitted to do in New York), or when a surviving spouse of a same-sex marriage seeks the benefit of the spousal deduction.” That is what plaintiff Windsor had done, and that is when the discrimination imposed by DOMA was imposed upon her.

Turning to the fourth point, the court compared the status of the political power of homosexuals with that of women at the time that the Supreme Court decided Frontiero v. Richardson , 411 U.S. 677 (1973). (In Frontiero , the Court employed heightened scrutiny to overturn an Air Force policy that said the husbands of female military service members had to prove their economic dependence on their wives in order to receive the same family benefits that were automatically given to the wives of servicemen.) As was the case for women in 1973, many strides have now been made in ensuring equality under the law for homosexual citizens. But also as was the case for women in 1973, much insidious discrimination against gay members of our society still takes place. Thus, the court determined that, today, “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

Applying the Test

Since heightened scrutiny was to be applied to the classification in Windsor, DOMA's Section 3 could be upheld only if it was found to be “substantially related to an important government interest.” Clark v. Jeter, 486 U.S.456 (1988). According to United States v. Virginia , 518 U.S. 515 (1996), the term “substantially related” means that the explanation must be “exceedingly persuasive,” and “[t]he justification must be genuine, not hypothesized or invented post hoc in response to litigation.”

The court then looked at and rejected all the justifications BLAG offered on behalf of Section 3:

Uniformity of the definition of marriage ' The court rejected this basis, in light of the long-standing federal policy of deferring to the states to define the marriage ' whether these definitions conformed with one another or not. Thus, the court concluded that “[b]ecause DOMA is an unprecedented breach of longstanding deference to
federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”

Protecting federal funds ' This argument was rebuffed by the court after it noted that, while the federal government might have to spend more, or take in less, money in some cases if same-sex marriage were recognized, in other cases it would spend less or take in more funds. In addition, many legal impacts of DOMA on same-sex married couples have nothing to do with federal financial matters.

Preserving a traditional understanding of marriage ' The court compared this argument to the ones made in favor of state-imposed bans on inter-racial marriage and sodomy. Both types of prohibitions were struck down by the Supreme Court, despite the fact that the majority of citizens in the states that proscribed those practices deemed them immoral. In the same manner, the Second Circuit determined that the preservation of a traditional understanding of marriage, based on a set of moral beliefs held by a majority, was not a persuasive justification for DOMA.

Encouraging Responsible Procreation ' This argument the court dispatched in very short order, finding, as other courts have previously, that DOMA does nothing to encourage opposite-sex couples to procreate responsibly.

Having found that DOMA's classification of same-sex spouses was not substantially related to any important government interests, the Second Circuit concluded that Section 3 of DOMA violates the equal protection clause, and it is therefore unconstitutional.

Moving Forward

With another defeat for BLAG in its defense of DOMA, the question arises whether it should continue the fight. Following the Windsor decision, House Minority Leader, Rep. Nancy Pelosi (D-CA), released a statement calling for BLAG to drop its “frivolous, taxpayer-funded lawsuits” in defense of a law that “den[ies] basic civil rights to an entire group” of Americans. Pelosi, Nancy (Oct. 16, 2012). Pelosi Statement on Speaker Boehner's Waste of $1.5 Million in Taxpayer Dollars Defending DOMA [press release]. Retrieved from: http://pelosi.house.gov/news/press-releases/2012/10/pelosi-statement-on-speaker-boehners-waste-of-15-million-in-taxpayer-dollars-defending-doma.shtml. Speaker of the House John Boehner (R-OH) has suggested that the money needed for DOMA's defense should be taken from the funds allocated to the Department of Justice (DOJ), which he claims is shirking its duty to defend a duly-enacted federal law. Boehner, John (April 18, 2011). Boehner Says DOJ Funds Should Be Cut To Pay For DOMA Defense; Asks Leader Pelosi To Join In Supporting Redirection of Funds [press release]. Retrieved from: http://boehner.house.gov/news/documentsingle.aspx?DocumentID=237443.

Whatever the financial arrangements, the fact remains that federal court after federal court has declared DOMA unconstitutional, yet the law remains on the books and impacts same-sex married couples and their families in myriad aspects of their lives. Thus, although the Supreme Court has held back for some time, the Windsor decision has added to the pressure for it to take up the question of DOMA's constitutionality sooner rather than later.

Janice G. Inman is Editor-in-Chief of this newsletter.