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Gill, Golinski and Windsor: what it all means for DOMA at the Supreme Court

DOMA trials Gill/Massachusetts Golinski Windsor

By Jacob Combs

Yesterday, Scottie analyzed the petition for certiorari filed with the Supreme Court by lawyers for Edie Windsor, a widowed New Yorker forced to pay over $350,000 in estate taxes after the death of her wife.  Windsor’s lawyers asked the Court to skip an appellate review by the Second Circuit Court of Appeals of a district court judgment in Windsor’s favor ruling DOMA unconstitutional.  The Windsor case is now the third DOMA case to be presented to the court, along with with a case out of California called Golinski, which the Department of Justice has asked the Supreme Court to take up before review at the Ninth Circuit Court of Appeals, and a case out of Massachusetts called Gill, in which the First Circuit Court of Appeals upheld a district court decision invalidating the statute.

Scottie’s post yesterday delved into the technical details of the three cases, especially Windsor, so I thought I’d take a broader look today at what the current landscape for DOMA litigation looks like.  In truth, the last month has completely changed the calculus regarding DOMA’s chances at the high court: before the Justice Department’s filing in Golinski, only the Gill case was at the point where Supreme Court review would normally be requested, and while the case certainly presents issues of extreme importance, there was specultaion that the Supreme Court might wait until more circuit courts ruled on the matter.  But with the Golinski and Windsor requests now filed, the Supreme Court has before it cases from three different circuits, each applying (or challenging) the distinct legal precedent of those circuits.

This is not to say the Supreme Court will not still wait for the Golinski and Windsor cases to go through the normal appellate process, which might produce what is called a “circuit split,” in which some circuits would strike DOMA down (as the First Circuit has) and others would uphold it.  But the concurrent petitions give the Supreme Court less of an incentive to do so, especially given DOMA’s remarkably poor track record so far in the court system: no judge has upheld DOMA as constitutional in recent years, and judges appointed by presidents of both political parties have declared it in violation of the U.S. Constitution.  Although each of these opinions has relied on distinct legal reasoning, the judicial consensus right now (as represented perhaps most succinctly by the 3-0 vote of a First Circuit panel with two Republican appointees and one Democratic appointee upholding a lower court ruling invalidating DOMA) is that the law simply doesn’t pass constitutional muster.

Perhaps the aspect of the triple petitions that makes the path forward for DOMA increasingly intriguing is that the three cases offer three unique paths forward on the issue of scrutiny, which of course is a significant one for the future of LGBT rights litigation at large.  The three lower court decisions being presented to the Supreme Court each offer their own unique opinion on the proper level of constitutional scrutiny courts should give to laws that discriminate against LGBT people.

In Golinski, Judge Jeffrey White decided that previous Ninth Circuit decisions mandating rational basis scrutiny were based on outdated law, and struck DOMA down under heightened scrutiny.  In Windsor, Judge Barbara Jones ruled that rational basis scrutiny sufficed in making a decision on the statute’s constitutionality, and declined to consider the necessity of heightened scrutiny.  And finally, the First Circuit, ruling in Gill, modified district court Judge Joseph Tauro’s reliance on rational basis classification and instead laid out an increased level of ‘rational basis plus’ scrutiny based on DOMA’s affect on a historically disadvantaged class and the federalism concerns inherent in its passage.

The Supreme Court will decide the scrutiny issue entirely on its own, and will be under no obligation to follow the guide of the lower courts.  But the three different constitutional reasonings in Gill, Golinski and Windsor nonetheless give the Court issues to chew on both in private and at oral argument.  Of course, that is assuming that the high court decides to take up the two latter cases before they are considered at the appellate level.  As usual, this is all crystal ball-style court-watching.

But I believe Edie Windsor’s case is important because it demonstrates in an incredibly eloquent and clear way how we should be looking at DOMA.  The Gill and Golinski cases were relatively complex ones, with arguments made about health insurance, survivorship benefits, joint tax filing, and federal infringements on the rights of the states.  The Windsor case is at its heart a much simpler one.  Edie Windsor was forced to pay an incredibly large amount of money after the death of her partner, despite the fact that the state they lived in recognized them as a married couple.  If she had simply been married to a man, she wouldn’t have had to do so. Notwithstanding the arguments made about the legislative intent of DOMA of the possibility of moral opprobrium as a force behind its passage, can there possibly be a rational governmental objective, in 2012, to punish an American citizen in this way?  I can’t think of one, and whether the Supreme Court takes up that question, hopefully sooner rather than later, I am sure that at least five justices won’t be able to think of one either.


  • 1. Leo  |  July 17, 2012 at 8:08 am

    no judge has upheld DOMA as constitutional

    Windsor's cert petition lists three that did.

  • 2. Jacob Combs  |  July 17, 2012 at 7:23 pm

    Updated for clarity–thanks for the comment!

  • 3. SHOES THROWER  |  July 18, 2012 at 11:03 am

    In addition to the three, DOMA was upheld by a district court in Torres-Barragan v. Holder, which was defended by the Obama administration.

  • 4. Sagesse  |  July 17, 2012 at 9:24 am


  • 5. karen in kalifornia  |  July 17, 2012 at 10:00 am

    True, the tax thing is ridiculous.
    Same (although a much less amount) that I have to pay federal tax on the value of health benefits I provide my spouse year after year after year.

  • 6. Mark B.  |  July 17, 2012 at 10:38 am

    <img src=""/>I agree, i think Edie Windsor's case is gonna be extremely important. <img src=""/&gt;

  • 7. J. Sanchez  |  December 7, 2012 at 9:14 pm

    I have read on conservative blogs that the Republican lawyers (BLAG) did not want SCOTUS to grant cert in Windsor but instead wanted the Court to grant cert in Gill. Aside from the fact that Windsor elevated sexual orientation to intermediate scrutiny, can someone please tell me why BLAG prefers Gill instead of Windsor.

  • 8. J. Sanchez  |  December 7, 2012 at 10:46 pm

    I found my answer. See:….

    Why BLAG (Paul Clement) prefers Gill over Windsor.

    Windsor= Sexual orientation warrants intermediate review.

    Gill= Sexual orientation does not warrant intermediate review + what BLAG argues is "previously unknown standard of equal protection review." BLAG claims Gill is "far superior" and does not have a standing problem that he claims exists in Windsor. (In other words, according to BLAG rational basis can be used to justify discrimination.)

    I guess BLAG is "worried" that the 2nd Circuit's analysis in Windsor articulating why sexual orientation should receive intermediate scrutiny might stick at the SCOTUS and it is easier to argue that "traditional" rational basis review allows section 3 of DOMA to survive.

    BLAG also argues that Windsor has issues related to standing. I am not sure if I am right, but I believe I read somewhere that BLAG (Paul Clement) has suggested that Ms. Windsor does not have standing because she was married in Canada before NY passed marriage equality (even though there is case law that proves that at the time Ms. Windsor married NY honored valid out-of-state/foreign same-sex marriages) and that therefore the question of standing should first be certified by the New York Court of Appeals (NY's highest court). In essence BLAG is saying Ms. Windsor has no standing because her marriage was not valid under NY law at the time that she got married.

    Hopefully when all is said and done, at least 5 members of the Supreme Court will agree with the 2nd Cir. and elevate sexual orientation to heightened scrutiny.

  • 9. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 5:34 pm

    […] in Windsor v. USA. Here’s our initial news post, here’s some analysis, and this morning Jacob tells us what it all […]

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