Today, June 23rd 2013, the Supreme Court overturned section 3 of the Defense of Marriage Act in United States vs. Windsor. That section is the one barring married gay couples access to federal benefits. The case dealt with the widow New York resident Edith Windsor who inherited her wife´s estate after her death in 2009. To inherit the estate, she would have to pay the estate tax or ¨death tax¨ of 363,000$. Such a large amount could be deducted as part of the spousal tax deduction if they had been a straight couple, but section 3 of DOMA prevented such an action. The two had been married in Canada, but New York state although not having legalized gay marriage in 2009 (they did in 2011), they did recognize gay marriages from other states or countries. Not wishing to be discriminated from federal benefits due to sexual orientation, she chose to litigate. She was joined by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP who argued for gay marriage in 2006 and the American Civil Liberties Union.
Windsor´s case went to the federal U.S. District Court for the Southern District of New York where on June 6 2012 section 3 was ruled unconstitutional under the Fifth Amendment´s due process clause, which ruled that the federal government cannot deprive citizens of life, liberty, and property without due process and must allow Windsor to collect the tax benefit.
Behind the scenes, the Obama administration through its justice department was embracing Windsor´s argument and decided not to defend DOMA in federal courts, but would still enforce it until either Congress repealed it or the Supreme Court struck it down.
After their victory in the District Court, the case was filed all the way up to the Supreme Court. Windsor´s age and health made her want to get the case over with quickly. But before the highest court would get its turn, the House of Representatives under control by Republicans displeased with the Obama administration´s decision not to to litigate against Windsor wanted to defend DOMA´s constitutionality and so sent the Bipartisan Legal Advisory Group represented by Paul Clement to the Second Circuit Court of Appeals. The majority held the District´s decision and declared that because homosexuals have a long history of discrimination, they are subject to intermediate scrutiny. Basically, any laws restricting the rights of homosexuals need to be made in only extremely necessary circumstances. Because DOMA could not pass that scrutiny, it was not permissible.
The Department of Justice on behalf of the House of Representatives wanting to defend DOMA also filed with the Supreme Court. On December 7th 2012 the court agreed to hear the case as United States vs. Windsor. The question was "whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection.¨ Oral arguments were heard March 27th 2013.
The decision was handed down today June 23rd 2013. In a 5-4 decision, Justices Anthony Kennedy, Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsberg ruled section 3 of DOMA unconstitutional. Kennedy writing the decision used the same reasoning of the lower courts. The Fifth Amendment prevents the denial of life, liberty, and property without due process of law.
Kennedy starts the decision by arguing that first the regulation of marriage is traditionally left to the states, saying “the Federal Government, throughout our history, has deferred to state-law policy decisions with respect to domestic relations,” and “the significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”
But federalism wasn't at issue here. “It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution... though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” He clearly states that at issue isn´t states rights but the nature of liberty itself. DOMA did not pass muster in terms of being necessary to the general welfare of the country, and so served to be a flat out denial of equal protection. "The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage," which is not a rational reason to deny legal rights.
United States vs. Windsor is about what is called substantive due process. Substantive due process treats certain laws, even if technically legal, as unconstitutional because they infringe on basic freedoms that are not the business of government and are what government is supposed to protect. These rights while not enumerated in the Constitution still exist and are rooted in the fabric of American society. They are implicit "of the very essence of a scheme of ordered liberty." United States vs. Carolene Products Co. in 1938 established a three part test to determine what rights were protected under due process. 1. they are derived from the first 8 amendments, 2. they protect the right to participate in the political process, and 3. they protect the rights of minorities. All of these rights must be rooted in American traditions, or must pass the rational basis test which is what DOMA was about. The rational basis test asks if the violation of the right can be rationally related to a legitimate government purpose. Defenders of DOMA would have to argue that denying federal benefits to same sex couple somehow strengthens the legitimacy of straight marriages. If it did not pass the test then it would in denial of the fundamental right of equal protection.
Anthony Kennedy used the concept of substantive due process a decade ago when he joined the majority in Lawrence vs. Texas and invalidated the Texas state ban on sodomy. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.¨ While a state can pass laws regulating pretty much whatever it wants under the Tenth Amendment, it cannot deny fundamental rights.
Keeping in mind that states where gay marriage is illegal still can deny benefits to partners, it is still a victory for human rights and a sign that America is going to continue the course of slowly but inevitably expanding the rights of citizenship to everybody. With all the cynicism over our inability to solve national problems, this is a huge step toward getting to a bipartisan consensus on this issue. Like Martin Luther King said, the arc of history is long, but it bends towards justice.
