Sign Up to Receive Email Action Alerts From Issa Exposed

Analyzing today’s petition for certiorari to the Supreme Court in DOMA challenge Windsor v. USA

DOMA trials Windsor

By Scottie Thomaston

A petition for certiorari to the Supreme Court was filed today in Windsor v. USA, a challenge to Section 3 of the Defense of Marriage Act brought by the ACLU and NYCLU. At its current stage, Windsor is on appeal to the Second Circuit Court of Appeals, since the district court judge rendered its decision striking down Section 3 as unconstitutional. At the district court level, the judge wrote that the case “may be disposed of under a rational basis review” and thus did not reach to apply a heightened form of judicial scrutiny or rule that classifications of gays and lesbians are suspect.

In one other case Golinski v. Office of Personnel Management, a petition was filed before a decision was reached by an appeals court – in that case, the Ninth Circuit Court of Appeals – called “cert before judgment.” The Justice Department asked the Supreme Court to review Golinski, which was the first federal court to strike down Section 3 of DOMA by applying a heightened form of judicial scrutiny. It has also been speculated that Golinski may be the only case currently before the Court in which Justice Kagan could participate. Based on her written answers to questions for her confirmation as a Supreme Court Justice, she could end up recusing herself in another case, Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services.

In Gill/Massachusetts, both the district court and the appeals court struck down Section 3 of DOMA. The First Circuit Court of Appeals was the first appeals court to do so. Both the Justice Department and the Bipartisan Legal Advisory Group (BLAG) – who is defending DOMA in court on behalf of House Republicans – petitioned the Supreme Court to review Gil. We analyzed the Justice Department’s petitions in Gill and Golinski here and the BLAG petition in Gill here.

In the Windsor petition for certiorari, there’s one question presented:

Does Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprive same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Notably, there’s no question regarding the level of scrutiny applied to laws affecting gays and lesbians, as there was in the Justice Department’s petition in the other two cases. The only question here is whether or not Section 3 violates equal protection principles in the Fifth Amendment, regardless of the level of scrutiny applied. And it has already been noted that this is a different strategy, presenting the argument before the Court that they could strike down Section 3 of DOMA using rational basis review alone.

The Supreme Court only grants cert before judgment and one of its rules states that the issue presented must be one of imperative public importance. In this petition, petitioners argue that Section 3 of DOMA fits that criteria, and in fact suggest all parties agree on this; then they write:

This case presents a question of exceptional national importance: the constitutionality of a statute, the Defense of Marriage Act (“DOMA”), that daily affects the lives of thousands of Americans.
…[I]ndividuals like petitioner continue to suffer serious consequences from the Government’s failure to recognize their lawfully solemnized marriages.
Because the terms “marriage” and “spouse” are used in a large number and wide variety of federal laws, many thousands of married same-sex couples are treated differently from married heterosexual couples in a plethora of ways.

New York, where Windsor lives, is the most recent state to enact a marriage equality law, and also the biggest and most populous. According to petitioners, this makes Section 3’s harms even more dramatic and widespread:

Between July 24, 2011 (when New York’s marriage statute became effective), and June 30, 2012, at least 9,763 same-sex couples have received marriage licenses from New York State. In New York City alone, same-sex couples now represent more than nine percent of the total number of marriages performed. As a result of DOMA, however, the large number of New Yorkers already married in New York or previously married in other jurisdictions (including many thousands like Ms. Windsor) are being subjected to a form of second class citizenship where they are fully married for purposes of state, but not federal, law.

Another reason the Supreme Court might grant cert before judgment and certiorari in general is a “circuit split”, where different parts of the country have decided the same issue but reached different results or used different approaches. Petitioners assert that this presents just that situation, and they describe lower courts as “in disarray” over the issue, telling the Court:

The First Circuit, the Northern District of California, and the Southern District of New York have held that DOMA is unconstitutional, but three other federal courts have upheld Section 3 under rational basis review.
Even courts that agree that DOMA is unconstitutional have reached that result through different legal frameworks.

Petitioners point to the district court decision in Golinski striking down Section 3 of DOMA and applying heightened scrutiny; they discuss the First Circuit’s opinion holding that Section 3 actually satisfies ordinary rational basis review and suggesting they are not applying heightened scrutiny but rather a heightened form of rational basis review, along with other decisions such as the court below in Windsor that applied standard rational basis review.

This situation is unwieldy and will only make it difficult for courts to resolve future challenges:

The current situation is untenable. It simply cannot be the case that marriages of same-sex couples that are performed in or recognized by California, New York, and states within the First Circuit will be recognized by the Government and receive federal benefits, while the same federal benefits will be denied to same-sex couples married in Iowa and the District of Columbia.

Arguing that Windsor’s case provides an excellent and appropriate vehicle to resolve the challenge, petitioners specifically point to a statement by BLAG that admits DOMA impacts Windsor such that if she had married a man instead of a woman, she would not be forced to pay $363,000 in taxes:

Ms. Windsor’s case presents an excellent vehicle for resolving the constitutionality of DOMA.That issue was the sole issue before the court below and it was fully briefed and argued on summary judgment. There is no dispute as to the impact of DOMA: BLAG acknowledged that petitioner “has submitted documents that, if accurate, establish the eligibility of Spyer’s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax if Spyer had been married to a surviving male U.S. citizen at the time of her death.” See Pet. App. a46 (emphasis added).

The petitioners state outright that there is no need to apply heightened scrutiny:

Because petitioner’s case was decided on the basis of standard rationality review, this Court could affirm the decision below without reaching the question of whether a more stringent standard of review should apply when the Government discriminates on the basis of sexual orientation. While petitioner argued below in the alternative, and continues to believe that heightened scrutiny is appropriate, the decision below demonstrates convincingly that Section 3 of DOMA violates the Fifth Amendment regardless of what standard of review applies.

And lastly, Edith Windsor is an 83 year old woman with health issues. Petitioners argue that this case, especially, should be reviewed and decided as soon as possible, because Windsor herself is entitled to judgment in her favor. While her estate would receive the tax refund if she wins, petitioners argue it is appropriate for Windsor herself to reap the rewards of a successful challenge:

Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms.Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.

A response is expected 30 days from the time the case is docketed. Assuming it was docketed today, that means a response is due August 15.

Image courtesy of Metro Weekly


  • 1. Thom Watson  |  July 16, 2012 at 12:49 pm

    Scottie: Does that 30-day rule hold even while the court is in recess, as they are now?

  • 2. Scottie Thomaston  |  July 16, 2012 at 12:58 pm

    Yes, because the responses will come from the parties to the case, not from the Justices (until they review the petitions in conference when they're back.)

  • 3. Sagesse  |  July 16, 2012 at 1:40 pm


  • 4. Prop 8 Trial Tracker &raq&hellip  |  July 17, 2012 at 10:10 am

    […] Analyzing today’s petition for certiorari to the Supreme Court in DOMA challenge Windsor v. US… […]

  • 5. Prop 8 Trial Tracker &raq&hellip  |  July 20, 2012 at 8:12 am

    […] Scottie analyzed the petition for certiorari filed with the Supreme Court by lawyers for Edie Windsor, a widowed […]

  • 6. Prop 8 Trial Tracker &raq&hellip  |  August 21, 2012 at 1:41 pm

    […] Windsor has petitioned the Supreme Court to review the district court decision in her case before it is heard by the appeals court, and the […]

  • 7. Prop 8 Trial Tracker &raq&hellip  |  August 23, 2012 at 3:00 pm

    […] the case to the Second Circuit and requested an expedited appeal schedule, but she also filed a petition for certiorari with the U.S. Supreme Court, seeking to have the case heard there before it is taken […]

  • 8. Prop 8 Trial Tracker &raq&hellip  |  October 23, 2012 at 12:08 pm

    […] 3 of the Defense of Marriage Act, the case had already been petitioned to the Supreme Court, where Windsor’s lawyers asked the Court to decide her case. The Justice Department then filed its own […]

  • 9.  |  April 16, 2014 at 9:56 pm

    I was curious if you ever thought of changing the layout of
    your blog? Its very well written; I love what youve got to say.
    But mybe you could a little more in the way of
    content so people could connect with it better.
    Youve got an awful lot of text for only having 1 or 2 images.
    Maybe you could space it out better?

    my webpage … cougar dating (

  • 10. ammo for sale  |  April 17, 2014 at 5:17 pm

    If you want to take a reat deal from this article then you have
    to apply such methpds to your wwon weblog.

    Here is myy blog post … ammo for sale

  • 11. ammo for sale  |  April 17, 2014 at 5:23 pm

    Very good info. Lucky me I discovered your blog by accident (stumbleupon).

    I have book-marked it foor later!

    Feel free to visit my blog – ammo for sale

  • 12. 5.56 ammo for sale  |  April 27, 2014 at 1:03 am

    After looking at a number of the articles on your site,
    I honestly appreciate your technique of writing a blog.
    I book marked it to my bookmark website list and will be chscking back
    in the near future. Please check out my website as
    well and let me know your opinion.

    Review my web blog … 5.56 ammo for sale

Having technical problems? Visit our support page to report an issue!