June 6, 2012
By Jacob Combs
Today, the United States District Court for the Southern District of New York ruled that Section 3 of the Defense of Marriage Act is unconstitutional in the case of Windsor v. USA, a suit brought by a New York woman who sought a refund for over $360,000 in federal estate taxes incurred upon the death of her legally wedded spouse.
Edie Windsor and Thea Spyer met in New York in 1963, and were together until Spyer’s death in 2009. In 1993, when New York City first offered an option for same-sex couples to register as domestic partners, Windsor and Spyer signed up; in 2007, when Spyer’s health began to worsen, the two decided to marry in Canada. In her will, Spyer left her estate to Edie Windsor, but because of DOMA, Windsor could not qualify for an unlimited marital deduction from the estate tax, and was required to pay $363,053 on Spyer’s estate. In November of 2010, Windsor filed suit, seeking a refund of the estate tax money along with a declaration that DOMA’s Section 3 violated her equal protection rights under the Fifth Amendment to the U.S. Constitution. In her complaint, Windsor argued that sexual orientation should be subject to strict constitutional scrutiny.
In her opinion, Judge Barbara Jones, a Clinton appointee, briefly addresses BLAG’s argument that Windsor did not prove that her Canadian marriage was valid in New York in light of a 2006 decision by the New York Court of Appeals holding that the state’s constitution “does not compel recognition of marriages between members of the same sex” (Hernandez v. Robles), noting that “in light of subsequent state executive action and case law” (7), BLAG’s argument is unpersuasive. In 2009, New York’s Governor, Attorney General and Comptroller all stated their belief that Windsor’s marriage was valid under state law, and every New York State appellate court to consider the issue after Hernandez has upheld the legitimacy of marriages performed in other jurisdictions.
Setting that argument aside, Judge Jones next considers BLAG’s assertion that Baker v. Nelson, a 40-year old case in which the U.S. Supreme Court summarily dismissed a suit brought by a gay couple in Minnesota seeking full marriage rights, precludes any lower court from considering cases pertaining to marriage equality. This is an argument that BLAG has used repeatedly and which is starting to wear thin given the increasing number of courts who are thoroughly unconvinced by it. As Judge Jones writes, “the case before the Court does not present the same issue as that presented in Baker” (10), since Baker addressed an inherent constitutional right to marriage, whereas the couples in Windsor and the other DOMA trials are duly married under their respective states’ laws.
In perhaps the most intriguing section of her opinion (at least for court watchers), Judge Jones addresses the proper standard of review that should be accorded to Edie Windsor’s complaint. Windsor, of course, argued that the court should apply strict scrutiny (the highest level) to her case, arguing that gays and lesbians exhibit all of the qualifications necessary to be ruled a suspect class meriting such exacting review. Citing the Supreme Court cases of Thomasson v. Perry and City of Cleburne, however, Judge Jones writes that “‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Significantly, the Second Circuit Court of Appeals, under whose jurisdiction the Southern District of New York falls, has not ruled that only rational basis scrutiny (the lowest level) should be applied to sexual orientation. Nevertheless, in her opinion, Jones opts not to address the issue of heightened scrutiny, since the issue before her, she writes, “may be disposed of under a rational basis review.”
Judge Jones’s scrutiny decision may undoubtedly frustrate those of us who follow LGBT civil rights cases across the country, and rightly so–gays and lesbians do indeed meet the requirements necessary to be classified as a suspect class, and heightened or strict scrutiny would be a major boon to our side in future court cases. Nevertheless, Judge Jones is following a well-estbalished tradition in the judicial system of incremental, restrained opinions. As frustrating as that is, she is correct to do so. Barring a higher court determination ruling otherwise, Judge Jones has decided to use the most liberal and least restrictive form of constitutional scrutiny, and finds that even under that classification, DOMA is still irreconcilable with any legitimate governmental interest.
In making this determination, Judge Jones explicitly cites the recent opinion by the First Circuit upholding a Massachusetts court’s decision to strike DOMA down. Like the First Circuit, she cites the Supreme Court’s landmark gay rights case Lawrence v. Texas to argue that, even within the same frame of rational basis scrutiny, there are two types of laws, “‘laws such as economic or tax legislation that are scrutinized under rational basis review, which normally pass constitutional muster,’ and ‘laws that exhibit a desire to harm a politically unpopular group,’ which receive ‘a more searching form of rational basis review under the Equal Protection Clause.’”
In her opinion, Judge Jones demolishes the various reasons proposed by BLAG for why DOMA should be ruled constitutional, and while her reasoning is thorough and persuasive, I will avoid going into it in detail here since other courts have made similarly effective determinations to the same effect. What is most significant is that DOMA has now been ruled unconstitutional by a federal appellate court and several district courts, and BLAG’s exceedingly unpersuasive arguments in support of the law have been dismissed again and again. Because of the simple fact that it was the first case to strike DOMA down, it appears extremely likely that Gill (the case decided by the First Circuit earlier this week) will be the first DOMA case to reach the Supreme Court. When it does, though, opinions from across the U.S. like Judge Jones’s will no doubt steer the Supreme Court towards a definitive ruling that DOMA is not, and never was, a constitutional law.