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Archives – June, 2013

Analysis: Supreme Court invalidates Section 3 of the federal Defense of Marriage Act, paving the way for federal recognition of same-sex marriages

By Scottie Thomaston

Edith Windsor. Attribution: Talking Points Memo
Edith Windsor. Attribution: Talking Points Memo

The Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA) today in United States v. Windsor, brought by plaintiff Edith Windsor. Windsor was seeking a $363,000 tax refund she was forced to pay after her wife passed away in 2009. A federal statute says that a surviving spouse does not have to pay the estate tax; but under DOMA, the definition of “spouse” means only a spouse of the opposite sex. Windsor would not have had to pay the $363,000 had she been married to a man instead of a woman. Today, the Supreme Court ruled that is unconstitutional under equal protection principles.

The opinion is 5-4 and written by Justice Kennedy, so it is largely what people might expect from that type of opinion.

Initially, the Court addresses the question of standing. Windsor sued the United States government, and in February 2011, the Executive Branch announced that it believes the statute is unconstitutional and would stop defending it in courts, including the Supreme Court. When Windsor won at the district court and Second Circuit Court of Appeals, the Justice Department agreed with the decisions, but appealed anyway, claiming to have a sufficient injury for purposes of being able to appeal to a higher court. They argued that even though they agree the law is unconstitutional, as the Executive Branch, their task is to enforce it, and both judgments below were orders from courts demanding that they stop enforcing the law and pay Windsor $363,000 from the United States Treasury.

Congress, through the Bipartisan Legal Advisory Group (BLAG) of the House, stepped in to mount a defense of the law’s constitutionality. The Court, in the end, issued no ruling on whether BLAG is a proper party in the case as a legal advisory group for one house of Congress; instead, they held that the injury suffered by the Justice Department is enough for the Court’s jurisdiction to “say what the law is.”

There is, as anticipated by many Court observers, no discussion of the standard of judicial scrutiny in the way that the Court has traditionally analyzed those standards. That is to say, instead of deciding whether the law should be reviewed under a more heightened form of judicial scrutiny that gives more deference to the challengers to same-sex marriage bans or the restrictive federal definition of marriage, using the analysis the Court has said should be undertaken, the Court instead discusses “careful” review of laws that are more suspicious. This approach inches close toward “suspect class” status for sexual orientation – the idea that writing a law that treats people of different sexual orientations differently on the basis of their sexual orientation is “suspect” because it classifies individuals based on a trait that is used to discriminate against them – but the Court doesn’t announce a specific level of review to apply. The furthest the Court goes is mentioning that the intrusion into state power by the federal government warrants special consideration, a lot like the First Circuit’s decision in GLAD’s challenge to the same law, Gill v. Office of Personnel Management:

In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The Court cites the House Report on the law as more proof of Congress’ desire to harm gays and lesbians. (The House Report says outright that DOMA was enacted out of Christian morality and to channel gays and lesbians into heterosexual marriages. Another part of the Report, not cited in the opinion, mentions promoting heterosexuality as a goal of the law.)

Kennedy writes, “Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.”

The Court speaks in glowing terms about same-sex couples, writing that:

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.

[…]DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages
are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have theirlives burdened, by reason of government decree, in visible and public ways.

The take-away is not dissimilar to the holding in 1996’s Romer v. Evans, also written by Justice Kennedy (though, of course, that was the 14th Amendment’s equal protection guarantee instead of the Fifth’s):

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

While Justice Kennedy’s majority opinion goes out of its way to suggest that the holding only applies to existing same-sex marriages, Justice Scalia’s dissent, much like his dissent in Lawrence, warns anyone against believing the decision will stay limited:

Now we are told that DOMA is invalid because it demeans the couple, whose moral and sexual choices the Constitution protects, ante, at 23 with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

His opinion goes on to try to prove his point by quoting large sections of the majority opinion and crossing out references to DOMA, replacing them with state marriage bans, purporting to suggest the reasoning will lead to striking down state marriage bans eventually. (Notably, Justice Kennedy’s opinion in Lawrence itself did suggest that the holding in Lawrence had nothing to do with recognizing same-sex marriages.

The Court’s four conservatives dissented in the case, but filed some separate dissents and some cross-joined each other’s dissents. Chief Justice Roberts wrote a separate dissent focusing on standing, but he also said he believes that DOMA is constitutional and should be reviewed under rational basis, the most lenient form of judicial scrutiny. The Justices had several different theories on standing, and the Chief’s opinion suggested the Court should have ruled there was no standing to review DOMA in this case.

This was a narrow opinion with a holding that will likely not be considered far-reaching, refusing to address the level of scrutiny or decide the case in a way that will definitively resolve all marriage questions. However, in the end, the Supreme Court today struck down a 1996 federal law that is considered one of the most odious, discriminatory federal laws in existence. It’s rare for the Court to invalidate a federal law, and even rarer when the law was passed by wide majorities at a time when most of the country would not have thought twice about the law’s impact. (It didn’t impact anyone in a direct way until Massachusetts legalized marriage equality.)

Going forward, the various agencies of the federal government, the President, the Justice Department, and others will continue working to implement the Court’s ruling and work on deciding how to apply federal benefits to same-sex as well as opposite-sex couples, as equal protection principles demand.

1 Comment June 26, 2013

Analysis: Supreme Court rules Prop 8 proponents lack standing, restores marriage equality to California

By Jacob Combs

In a narrow yet major victory for marriage equality, the Supreme Court ruled today that the proponents of Proposition 8 did not have standing to defend the law in Court, paving the way for equal marriage rights to return to California.  The ruling focused specifically on issues of standing, but will allow a lower court ruling that invalidated Prop 8 as unconstitutional to stand as the final say on the issue.

First, the ruling itself, which was written by Chief Justice Roberts and joined by an unusual coalition of Justices Scalia, Ginsburg, Breyer and Kagan.  As the Chief Justice noted early in his opinion, “Federal courts have authority under the Constitution to answer such questions [of constitutionality] only if necessary to do so in the course of deciding an actual ‘case’ or ‘controversy.’ … It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”

To briefly rehash the history of the Prop 8 challenge, the original lawsuit was brought by two same-sex couples who had been denied marriage licenses by their county clerks.  When California’s governor and attorney general declined to defend Prop 8 in court, the measure’s official ballot proponents stepped in to defend the law.  The two couples succeeded in winning a district court ruling that Prop 8 was unconstitutional, and the proponents appealed to the Ninth Circuit, where they lost, and then to the Supreme Court.

The central question in today’s Prop 8 decision is whether or not the proponents had the right–known technically as Article III standing–to defend Prop 8 in federal court.  In order to do so, the Chief Justice wrote, the proponents would have had to assert “a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.”  As he wrote in his opinion today, Roberts determined them unable to do so:

The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything…. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.

In court, the Prop 8 proponents argued that even if they did not have an individual, particularized interest in defending the law, they were authorized to represent California’s own interest in the constitutionality of the measure, relying in large part on a 2011 California Supreme Court ruling that staked out this argument.

Roberts disagreed with that holding, citing the 1991 holding in Powers v. Ohio that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”  He distinguished the Prop 8 litigation from a case from New Jersey called Karcher v. May in which New Jersey state legislators were permitted to defend a law after the state’s attorney general refused to do so, writing that the Supreme Court specifically ruled those legislators lost the right to defend the law after they left office.

Roberts also cited a passage from the Court’s ruling in Arizonans for Official English to refute the proponents’ arguments based on the California Supreme Court ruling, writing that the state court’s decision answered only whether the proponents had “the authority to assert the State’s interest in the initiative’s validity” and did not authorize them to act “‘as agents of the people’ of California.”

Dissenting from Chief Justice Roberts’s majority ruling, Justice Kennedy–joined by Justices Thomas, Alito and Sotomayor, repeatedly asserted that the Supreme Court should have accepted the California Supreme Court’s arguments and granted standing to the proponents:

[T]he State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.

In his conclusion, Chief Justice Roberts wrote that the Court would not change its previous holdings on ballot proponents’ standing, and sent the Prop 8 case back to the lower courts:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

This last paragraph of the ruling means that the Ninth Circuit’s decision invalidating Prop 8 is essentially nullified, since the proponents did not have standing to appeal to the circuit court in the first place.  Judge Vaughn Walker’s decision, then, is now the final ruling on the law, and will apply only to California.

Some have argued that the Supreme Court’s decision should only affect the two couples who filed suit against Prop 8, or the two counties in which the couples reside, because the suit wasn’t brought on behalf of California’s same-sex couples as a class.  This argument has little merit: Judge Walker’s district court injunction was worded to apply to California’s governor and attorney general, as well as all of the state officials under their authority.

In a statement following the ruling, California Governor Jerry Brown announced in plain terms that ” the district court’s injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it.”  This determination was based on a legal opinion from the office of California Attorney General Kamala Harris.

There is a 25-day window during which a petition for rehearing can be filed with the Supreme Court, although such petitions are rarely granted.  After that time, the Supreme Court’s opinion will become official and its instruction to the Ninth Circuit to lift its stay against Judge Walker’s injunction will be in effect.  The Ninth Circuit could choose on its own accord to lift the stay before that 25-day window has shut, which would allow same-sex couples in California to wed even sooner.  In either case, marriages should return to California within a month’s time.

We’ll have continued coverage of the Prop 8 case in the next few days and Scottie will be posting an in-depth analysis of the DOMA ruling later this afternoon.  Congratulations, California!

1 Comment June 26, 2013

Live Q&A on the Supreme Court’s Prop 8 and DOMA decisions featuring attorneys Shannon Minter and Chris Stoll from NCLR

By Scottie Thomaston, Jacob Combs, and Adam Bink

1:06ET: We will be opening the chat about 10 minutes before it starts, which is in about ten minutes from now. Until then, the chat feature will remain closed. Hope to see you all there soon!

Attorneys Shannon Minter and Chris Stoll from the Nation Center for Lesbian Rights (NCLR) join us here today for a live chat on the Supreme Court’s decisions in the challenges to Section 3 of the federal Defense of Marriage Act and California’s Prop 8. They have graciously agreed to be around to answer all questions you may have on what the Court said about marriage equality and federal recognition of same-sex couples. Readers can post your questions into the chat (you won’t need an account) and we will moderate the discussion, posting questions there for Shannon and Chris to answer.

Live Q&A on Prop 8, DOMA decisions with EqualityOnTrial and NCLR

EqualityOnTrial will have more in depth coverage later today on the marriage cases after the live discussion ends. Stay tuned!

June 26, 2013

BREAKING: Prop 8 proponents did not have standing to defend law, Supreme Court rules

By Jacob Combs, Scottie Thomaston and Adam Bink

The big news continues: The Supreme Court has ruled that the official ballot proponents of Prop 8 did not have standing to defend the law in Court.  That means the Court did not rule on the law’s constitutionality, and instead sent the case back to the Ninth Circuit to dismiss the appeal for lack of standing.  District Court judge Vaughn Walker’s ruling will thus be the final say in the Perry case.

Here’s the money quote from the opinion in Hollingsworth v. Perry:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

And again, from Kathleen, a Scribd embed of the opinion:

[scribd id=149959833 key=key-kjpsr6uukuusq8708ml mode=scroll]

This is a breaking news post.  For further updates and reactions, follow us on our Supreme Court decision day liveblog.

4 Comments June 26, 2013

BREAKING: Defense of Marriage Act struck down by Supreme Court

By Jacob Combs, Scottie Thomaston and Adam Bink

Huge news: The Supreme Court has ruled that the Defense of Marriage Act violates the U.S. Constitution, striking down the law and extending federal marriage benefits for duly married same-sex couples.

Here are the choice quotes from the Supreme Court’s official summary of the opinion in U.S. v. Windsor:

1. This Court has jurisdiction to consider the merits of the case.

2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

The ruling does not resolve the heightened scrutiny vs. rational basis scrutiny questions.  From the opinion:

The majority opinion need not get into the strict-vs.- rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is un- constitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty pro- tected by the Fifth Amendment,” ante, at 19.

Via the always wonderful Kathleen, here’s a Scribd embed of the decision:

[scribd id=149966932 key=key-rmvl3982bp1s9j4bxql mode=scroll]

This is a breaking news post.  For further updates and reactions, follow us on our Supreme Court decision day liveblog.

1 Comment June 26, 2013

Liveblog: Supreme Court rulings on DOMA, Prop 8

By Jacob Combs, Scottie Thomaston and Adam Bink

Update 16 (12:01 p.m.): A few other news items that have straggled in.

The president released a statement on the DOMA ruling:

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

In addition, the Los Angeles County Registrar-Recorder/County Clerk issued the following press release on the Prop 8 ruling and the effect in California/L.A.:

Upon dismissal of Prop 8, the matter has been sent back to the lower Appellate Court where the decision overturning Proposition 8 was issued. The lower court must now take action to lift the stay before we can issue marriage licenses based on the decision.

No change in the issuance of marriage licenses can occur until further notice. Upon direction, the Los Angeles County Registrar-Recorder/County Clerk will begin issuing licenses and performing ceremonies for same-sex couples.

“We do not foresee any delays or interruption in service for our customers. We are prepared to accommodate any potential volume increases,” said Dean Logan, the Los Angeles County Registrar-Recorder/County Clerk.

Update 15 (11:23 a.m.): OK, last update right now for real.  Check out two amazing photos of Edie Windsor finding out that she won today, via the New Yorker.  Truly heart-warming.

Update 14 (11:20 a.m.): Scottie and Jacob are going to go into deep decision-reading mode now.  Long story short: DOMA is gone, Prop 8 will be too, but there are going to be some intermediate steps and things to figure out as the decisions are implemented.  Of course, we’ll be here for the ride with you!

Make sure to check back around 10:30 a.m. Pacific/1:30 p.m. Eastern for our CoveritLive event.

Update 13 (11:14 a.m.): Adam Liptak of the New York Times writes about the path forward for same-sex couples post-DOMA:

The decision will immediately extend some federal benefits to same-sex couples, but it will also raise a series of major decisions for the Obama administration about how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

Update 12 (11:12 a.m.): A tweet from Senior Advisor to the President Dan Pfeiffer:

Update 11 (11:10 a.m.): A few notes on what could be next.  There’s a roughly one-month waiting period before the Supreme Court’s decision can be final.  When that happens, there will likely be some controversy about the scope of Walker’s ruling (aka, whether it should apply to the whole state or just to the counties the two couples live in or the couples themselves).  Most observers think the final result will be state-wide marriage equality.  But there could be some bumps along the way.

Update 10 (11:07 a.m.): Here’s what that Prop 8 ruling means.  Since the Court said the proponents had no standing to appeal, the entire process at the Ninth Circuit was essentially moot.  The Supreme Court vacated the Ninth Circuit’s decision, remanded the case to the circuit court, and instructed it to dismiss the appeal for lack of standing.  This means Judge Walker’s ruling striking down Prop 8 will be the final say in the case.

Update 9 (11:04 a.m.): Sorry about the technical difficulties, folks!  We’re back now, and we have the Prop 8 decision.  The Court rules that the proponents did NOT have standing to defend the law in federal court.

Update 8 (10:14 a.m.): Per SCOTUSblog: Scalia’s bench statement is long, could be a delay before we hear the Prop 8 decision.

Update 7 (10:11 a.m.): SCOTUSblog says there is language intimating Court will dismiss Prop 8 on standing.  From the Roberts dissent:

“We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”

Update 6 (10:10 a.m.): SCOTUSblog reports that Roberts and Scalia write that the Court does not have jurisdiction.  Roberts writes separately.  Here’s a choice quote from Scalia’s dissent:

“both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.”

Update 5 (10:08 a.m.): From the ruling:

The majority opinion need not get into the strict-vs.- rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is un- constitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty pro- tected by the Fifth Amendment,” ante, at 19.

So no heightened scrutiny, but also no mandate to lower courts to use rational basis scrutiny.

Update 4 (10:05 a.m.): SCOTUSblog says the ruling also relies in part on federalism.  Here’s the link to the opinion.

Update 3 (10:04 a.m.): This is an equal protection based ruling, which is BIG.  The question now is–what was the standard of review used.  Rational basis?  Or heightened scrutiny?

Update 2 (10:03 a.m. Eastern): From SCOTUSblog: “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

Update 1 (10:02 a.m. Eastern): The first ruling is on DOMA, per SCOTUSblog.  The ruling is 5-4, written by Justice Anthony Kennedy.  Chief Justice John Roberts dissents, along with Justice Scalia.  The ruling is based on equal protection.

ORIGINAL POST (9:55 a.m. Eastern): In just a few minutes, the U.S. Supreme Court will convene to issue rulings in the final cases of its current term, including the challenges to Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (U.S. v. Windsor).  We’ll be covering the decisions live in this post as they’re handed down, with updates scrolling from the top of the post.  We’ll also publish brief, breaking news posts as the rulings are handed down in each case, since we expect there to be a short wait between the two.  If you’ve already joined us, though, stay on this page for immediate analysis and reactions from across the web.

Later today, we’ll be conducting a CoverItLive chat to answer all your questions about the rulings–stay tuned for firmer details on that, which will take place late morning Pacific time/early afternoon Eastern.  After the CoverItLive chat, Scottie and I will write in-depth analysis of the two rulings.

If the details of the two cases have become fuzzy to you, fear not!  Our own Scottie Thomaston has a quick overview on the background of the legal challenges.

The Prop 8 and DOMA cases: a primer

In the Prop 8 case, Hollingsworth v. Perry, the plaintiffs are challenging California’s ban on marriage equality, 2008’s voter-enacted Proposition 8. The state’s supreme court had earlier decided that under California’s constitution, a ban on same-sex marriage is unconstitutional; Prop 8 amended the state constitution. The question is whether, under the federal constitution, they can do this. There is an additional question over appellate standing. The state government answered the original complaint at the district court, but did not want to defend the law; the district court allowed the ballot initiative’s proponents, ProtectMarriage, to defend the law. When the plaintiffs won, the state declined to appeal the decision, but the proponents appealed. The Ninth Circuit sent the case to the state supreme court to decide whether ballot initiative proponents can represent the state’s interests in court, and the state constitution said they can.

With that ruling in mind, the Ninth Circuit said that since the state allows proponents of ballot initiatives to step into the shoes of the state, there is standing in federal court to appeal, since the state is injured. The plaintiffs believe there is no standing here, because the Court itself has expressed “grave doubts” on the issue in a previous case, Arizonans for Official English v. Arizona. The proponents of ballot initiatives don’t have a personal injury or stake in enforcing Prop 8, and the plaintiffs believe the proponents’ interests are too general. The Court asked the parties to brief and argue the standing issue, and it was discussed first at the arguments in March.

The Court has once before been faced with the issue of marriage equality. They were asked to resolve a procedural case about same-sex marriage in Washington DC, and their opinion could have had the effect of holding off on allowing marriages in DC and putting the issue up to a public vote before anyone could enter into a same-sex marriage. Chief Justice Roberts issued a decision saying this could not happen. The Court, to be sure, didn’t address the merits in that case at all – it was strictly procedural. But the result had the effect of allowing same-sex couples to marry through, essentially, the Court’s inaction.

The challenge to Section 3 of the Defense of Marriage Act (DOMA) that the Court chose to review, United States v. Windsor, was brought by Edith “Edie” Windsor. Windsor is 83, and her spouse and partner of over 40 years died in 2009 (they were married in Canada in 2007 and lived together in New York.) Because of Section 3 of DOMA, all federal laws that use the word “spouse” or the word “marriage” refer only to opposite-sex married couples, meaning that the federal government does not recognize legally married same-sex couples as married. When Windsor’s wife died, the government sent her a tax bill for $363,000; the bill was for estate taxes, which the surviving spouse of a deceased person is not usually required to pay under federal law. Windsor, however, is not a surviving spouse under federal law because she is not a spouse at all under DOMA. The lawsuit challenged Section 3 of DOMA as a violation of equal protection principles established in the Fifth Amendment.

Another question the Justices added was about their own jurisdiction to take up the challenge to Section 3 of DOMA. This is an important question which came up because the President and the Justice Department declined to defend the Act in court, leaving it to Congress to defend. (There is a provision of federal law which lays out the procedures for when the Executive Branch believes a law is unconstitutional and declines to defend it, and when Congress was informed as per the provision, they decided to take it up.) The Justice Department stayed on the case as a party, and continued to file appeals and procedural motions in the case, as well as motions actively attacking the Act’s constitutionality. They filed a petition to the Court to review the case, along with the plaintiff’s lawyers. The Justice Department agrees with Windsor that the law is unconstitutional, and she won in the courts below (the district court and the Second Circuit Court of Appeals.)

Because of this, the Court asked whether they can take up a petition filed by a party who got what it wanted in the lower court. The Justice Department says they can, because as a representative of the Executive Branch, the Justice Department filed the petition on the basis that although the Executive agrees the law is unconstitutional, they are “injured”, legally, by a decision against them in the appeals court, which blocked them from complying with the federal law. The Court can decide, definitively, whether or not the Executive has to abide by Section 3 of DOMA.

Congress, through the Bipartisan Legal Advisory Group (BLAG), a five-person legal advisory group that is a part of the House of Representatives, defended the law and opposed the Justice Department’s involvement. They also argued that Windsor may not herself have standing to appear in court because there was no definitive decision by the highest New York court saying that they would have recognized her Canadian marriage; this issue was only briefly mentioned at the Supreme Court, after the lower courts disagreed with BLAG. But there is a similar issue with BLAG itself: the Court asked the parties to brief and argue whether BLAG has standing to appear in federal court as a five-member advisory group of one house of Congress. (Also, only three of the five members, the three Republicans, voted to allow BLAG to defend DOMA, though all five believe there is standing.) The standing issues are significant questions the Court has not addressed in a definitive way.

This is a developing story.  Check back for regular updates, which will scroll from the top of this post.

2 Comments June 26, 2013

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