THE CASE OF THE UNITED STATES V. WINDSOR IN CONSIDERATION

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THE CASE OF THE UNITED STATES V. WINDSOR IN CONSIDERATION OF THE JUDGES’ JUDGEMENT

Annamária Zsiros PhD Student

University of Miskolc – Faculty of Law, Department of Constitutional Law

INTRODUCTION

To make the case clear we have to lay down that the members of the Supreme Court of the United States of America at present are John Glover Roberts, the Chief Justice of the United States, and the associate judges Antonin Scalia, Antony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito JR., Sonia Sotomayor and Elena Kagan¹.

The Defense of Marriage Act (DOMA) under discussion is a United States federal law that was signed by the President Bill Clinton on 21 September, 1996.

The law defines that marriage can only be between one man and one woman in the United States. The DOMA denies federal recognition of same-sex marriages and authorizes states not to recognize same-sex marriages licensed in other states.²

According to the definition of marriage: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”³

In many states same-sex marriage has been a contested political question for the past decades. By 2013, 13 states positively allowed same-sex marriage while 35 states prohibited it.”⁴

In this essay we focus on the case of the United States and Windsor.

According to the United States Reports Ms Edith Windsor married Thea Spyer in 2007 in Canada, where same-sex marriage had been recognised since 2005. They returned to their home in New York City. Thea Spyer died in 2009, and she left her entire estate to Ms Windsor. As federal law exempts the spouse from paying inheritance tax on their deceased husband or wife's estate, Ms Windsor claimed this exemption, too. However, according to DOMA Ms Windsor and Ms Spyer were not spouses, and therefore Edith Windsor was liable to pay $363,000 to the federal government. Ms Windsor did so, and then filed suit for the refund in the federal district court in Southern New York.⁵ She was represented by the law firm Paul, Weiss.

1 http://www.supremecourt.gov/about/about.aspx 08.11.2014

2 http://legal-dictionary.thefreedictionary.com/Defense+of+Marriage+Act+of+1996 08.11.2014

3 http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf 08.11.2014

4 Loveland, Ian The Right to Engage in Same-sex Marriage in the United States? In: European Human Rights Law Review, Vol. 1 2014, 11.

5http://www.documentcloud.org/documents/717750-supreme-court-ruling-on-doma-annotated.html 16.11.2014

DOI: 10.26649/musci.2015.089

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In his article, Ian Loveland⁶ says, “Her contention was that the Fifth Amendment contained an implicit equal protection clause, that DOMA discriminated between people on the basis of their sexual orientation, and that discrimination on that basis was a violation of equal protection. The suit per se was extremely interesting in constitutional terms.”⁷

What is more interesting is that the Obama Administration fully endorsed Ms Windsor's opinion.⁸ On 26 June, 2013 the Supreme Court struck down Section 3 of the Defense of Marriage Act and in his statement shortly after the Court’s ruling, President Obama welcomed the decision.⁹

The Bipartisan Legal Advisory Group (BLAG)¹⁰, which had defended Section 3 when the Administration refused to, acknowledged that in Ms Windsor’s case "the Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute."¹¹

As for the Obama Administration’s stand, some earlier events should be mentioned. In February 2011, the Obama Administration announced that the Defense of Marriage Act was unconstitutional on equal protection grounds. The Department of Justice would not defend DOMA in court, as Attorney General Eric H. Holder wrote, however, the Obama Administration would still continue to enforce it. The decision to enforce but not defend is specific: the decision to not defend is based on the judgement according to which the statute is unconstitutional, and if a statute is unconstitutional, the consequence is that the statute should not be enforced.¹²

In February 2013 Barack Obama openly announced that he supported same- sex marriages, and officially instructed his Attorney General not to defend DOMA at court. Congress Republicans, however, considered it a question of principle to keep the Defense of Marriage Act, due to which they would turn to legal tools.¹³ Very soon after the decision, the Obama Administration took steps to provide the same benefits (life insurance, health insurance etc.) to homosexual employees of the government.

What makes the case even more complicated is that there are no specifications considering the question in which state these marriages should be acknowledged as valid: whether it should be the spot of the wedding or the location

6 Ian Loveland is the Professor of Public Law at the City Law School where he joined in 1999, having previously held academic posts at Oxford, QMW and Brunel universities.

7 Loveland, Ian The Right to Engage in Same-sex Marriage in the United States? In: European Human Rights Law Review, Vol. 1 2014, 13.

8 Id.

9http://www.whitehouse.gov/blog/2013/06/27/obama-administration-statements-supreme-court-s-doma- ruling 16.11.2014

10The Bipartisan Legal Advisory Group (BLAG) is a standing body of the U.S. House of Representatives. It stated its institutional position in litigation matters through a five member bipartisan leadership group. Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel.

11 http://www.buzzfeed.com/chrisgeidner/house-rules-in-new-congress-allow-continued-doma-d#.umZaR3vb 16.11.2014

12 Tipler, Kathleen Obama Administration's Non-defense of DOMA and Executive Duty To Represent, In:

Maryland Law Review, Vol. 73 2013, 87.

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where they filled in their tax revenue, or where they applied for benefits, or where they registered as residents. The Congress could clarify these questions, but as there is a majority of Republicans who used to support DOMA, it is not likely that the problem will be solved.

The Senate Committee of Health, Education, Labor & Pensions (having the majority of Democrats), however, agreed to give benefits to homosexual workers.

The so called Employment Non-Discrimination Act (ENDA) would prohibit the discrimination on the basis of sexual orientation and gender identity at workplaces at federal level, nevertheless, small enterprises and religious organizations could be exempt due to Republican pressure. Both houses of the Congress had to accept this plan if they wanted the President to sign it and make it legally binding.¹⁴

On 7 November, 2013 the amendment was passed. The Employment Non- Discrimination Act of 2013 (Sec. 4) prohibits covered entities (employers, employment agencies, labor organizations, or joint labor-management committees) from the discrimination on the basis of an individual's sexual orientation or gender identity. It “declares that it shall be unlawful for an employer, because of an individual's actual or perceived sexual orientation or gender identity, to: (1) fail or refuse to hire, to discharge, or to otherwise discriminate with respect to the compensation, terms, conditions, or privileges of employment of such individual; or (2) limit, segregate, or classify employees or applicants in any way that would deprive any individual of employment or adversely affect an individual's status as an employee. Prohibits employment agencies, labor organizations, and training programs from engaging in similar practices that would adversely affect individuals based on such actual or perceived orientation or identity.”¹⁵

OPINION OF THE COURT

The US District Court and Court of Appeals ruled that DOMA’s Section 3 was unconstitutional and ordered the US to pay a refund. This court affirmed the judgement in Windsor’s favour. DOMA contains two operative sections. Section 3 is at issue. The definitional provision does not forbid States from enacting laws permitting same-sex marriages or civil union. The State of NY deems the women’s Ontario marriage to be a valid one. Windsor did not qualify for the marital exemption from the federal estate tax. She contended that DOMA violated the guarantee of equal protection.¹⁶

Justice Kennedy stated that the mentioned act violated the principles of federalism, which let states follow their own course. However, he claimed it is unnecessary to decide the case on grounds of federalism.¹⁷ “The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When

14 http://kitekinto.hu/amerika/2013/07/12/erzdnek_a_meleghazassag_hatasai/#.VIwFitKG-jh 22.11.2014

15 http://thomas.loc.gov/cgi-bin/bdquery/z?d113:SN00815:@@@D&summ2=m& 22.11.2014

16 http://www.documentcloud.org/documents/717750-supreme-court-ruling-on-doma-annotated.html 5-26 22.11.2014

17http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme-court-decision-ondoma.html?_r=2&

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the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”¹⁸

He also wrote that if a state decided to grant the right to marry, it fundamentally meant issues of human rights and "dignity". The latter word occurs several times in the majority opinion.¹⁹

The State gave their lawful conduct a lawful status for same-sex couples that wanted to get married. It is a legal acknowledgment of the intimate relationship between two people, which is deemed by the State worthy of dignity in the society equal with other marriages.²⁰

As a conclusion, Justice Kennedy says that the Act must fail because it deprives same-sex couples of the dignity that the states intended them to have. The other reason is that it sets them apart in a way that violates the equal protection principles guaranteed under the Constitution.²¹ He says, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”²²

Associate judges Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan also joined this opinion.²³

DISSENTING OPINIONS Justice Scalia

The most significant dissent came from Justice Scalia J. He claims that the case is about power in some respects and it is mainly about the power of people to govern themselves, and the power of the Supreme Court to make the law. His opinion is that they have no power to decide the case, in addition, they have no power under the Constitution to make this democratically adopted legislation invalid. He believes that the error the Court made comes from “an exalted conception of the role of this institution in America.”^24,25

18http://www.documentcloud.org/documents/717750-supreme-court-ruling-on-doma-annotated.html 22.

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23 Loveland, Ian The Right to Engage in Same-sex Marriage in the United States? In: European Human Rights Law Review, Vol. 1 2014, 14.

07.12.2014

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On the basis of Justice Scalia J’s point of view we can realise that he disapproves of the majority’s opinion, and he sarcastically describes the majority’s opinion black-and-white, but he definitely thinks the truth is much more complicated.²⁶

"In my opinion, however, the view that this Court will take of State prohibition of same-sex marriage is indicated beyond mistaking by today's opinion..., The real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by 'bare desire to harm' couples in same sex marriages.”²⁷

He concludes that “Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”²⁸ Justice Alito

Justice Samuel Alito also dissented, joined by Justice Thomas. The essence of his opinion is that the main idea is not about the fundamental right in this field because the same-sex marriage is not rooted in the country’s traditions. This question concerns absolutely the public policy, not the constitutional law. ²⁹

Alito agreed with Scalia in that the issues like that should be discussed by governmental institutions, not by the judiciary. He would approve of the decision of the Congress in 1996.³⁰ He expresses his hope that the Court will finally let the people in each of the States decide this question for themselves.³¹ He proves his point of view by saying that the Constitution does not mention the related views of marriage, and there should be time to finish the debate in terms of the judiciary.

Alito argued that the Fifth Amendment’s due process clause, which Windsor asked the Supreme Court to look at DOMA through, does not apply to the case.

At this point we have to touch upon the Fifth and Fourteenth Amendments of the United States Constitution, which limit the power of the federal and state governments to discriminate. The Fifth Amendment has an obvious requirement that the Federal Government should not deprive individuals of "life, liberty, or property," without due process of the law and a certain guarantee that everybody should get equal protection of the laws. The Fifth and the Fourteenth Amendments clearly declare that states may not deprive an individual of life, liberty or property

27 Loveland, Ian The Right to Engage in Same-sex Marriage in the United States? In: European Human Rights Law Review, Vol. 1 2014, 19.

07.12.2014

29http://www.alliancedefendingfreedom.org/content/campaign/2013/SCOTUS-on-Marriage/docs/Legal- Summary-Windsor.pdf 07.12.2014

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without due process of law, and may not violate an individual's rights of due process and equal protection, either. 32’33

Alito focuses on the notion that the due process clause protects only the fundamental rights and liberties that are ‘deeply rooted in this Nation’s history and tradition’. As we have mentioned in his dissent he states that it is obvious that the right to same-sex marriage is not deeply rooted in the country’s history and tradition.

Also, he claims Windsor and the United States want the acceptance of a very new right. He believes that they cannot prove that same-sex marriage is a fundamental right under the Constitution, so Windsor and the United States base their arguments on equal protection terms. Alito describes it as a misguided approach.³⁴ “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials,”³⁵ he added.

Alito refers to the Hollingsworth v. Perry case several times as the Supreme Court ruled in this case arising from Proposition 8, the California constitutional amendment that banned same-sex marriage following a state Supreme Court ruling mandating it, that the amendment's promoters, who were defending it in court after the California government declined to do so, did not have standing to appeal. Due to this, the ruling of the district court stays in effect, repealing the amendment and considering same-sex marriage to be legal again in California. ³⁶

California's changing attitude towards same-sex marriage recognition is rather problematic. In February 2012, the Ninth Circuit Court of Appeals justified a U.S. District Court decision from 2010, which declared Proposition 8 invalid. The decision from 2013 (Hollingsworth v. Perry, 133 S. Ct. 2652) reinstated the right of same-sex couples to marry unless it is overturned by a higher court³⁷.

Roberts J. G.

Justice Roberts J. G. gave a brief dissent in which he questioned the Court’s authority even to address the question before it. ³⁸

The central topic of the majority opinion is that the Federal Government's intervention in an area which is central to state domestic relations law and according to him it is sufficiently strange warning of trouble. He claimed that “while ‘[t]he

32 http://finduslaw.com/us-constitution-5th-14th-amendments 14.12.2014

33 http://www.law.cornell.edu/wex/fifth_amendment 14.12.2014

34http://cnsnews.com/news/article/alito-and-thomas-dissent-constitution-does-not-guarantee-right-enter- same-sex-marriage 14.12.2014

14.12.2014

36 http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/26/the-supreme-court-ended-proposition-8- heres-what-that-means/ 14.12.2014

37The right of same-sex couples to marry in California dates back to May 2008 when the California Supreme Court so ruled. As same-sex marriages were brought about for a short period before Proposition 8 was certified, California recognizes same-sex marriages from before November 5, 2008

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State's power in defining the marital relation is of central relevance’ to the majority's decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA's constitutionality in this case“³⁹

Chief Justice Roberts pointed out that the Court did not put emphasis on the constitutionality of state same-sex marriage prohibitions.⁴⁰ Roberts intended to highlight the limits of the majority’s reasoning, because it is not only a question that he considers not to be properly before the Court, i.e. DOMA’s constitutionality, but also a question that is not at issue.⁴¹

Clarence Thomas

Justice Thomas joined Justice Scalia’s dissenting opinion. He believed his duty was to decide cases according to the Constitution and laws of the United States, and limited his dissent strictly to federalism issues.⁴² Thomas' loyalty to ideological principles was stronger and more consistent than other conservative justices'. In the present case, the main question was whether marriage should be the province of states, putting a federalist principle into the centre of conservative legal jurisprudence.

Nevertheless, the analysts thought Thomas was not a winnable vote to overturn DOMA.⁴³

THE RESULT: EDITH WINDSOR’S VICTORY

On 26 June, 2013 the Supreme Court decision which overturned the Defense of Marriage Act was significant for a lot of people. Edith Windsor, the plaintiff who had brought the case, finally got back the $638,000 in estate tax payments. That money had been the issue in focus since Windsor sued to get it back in November 2010. Her case first went before a federal trial court judge in New York, after that to the Second Circuit U.S. Court of Appeals, and eventually to the U.S. Supreme Court. Windsor was also paid interest on her refunds. ⁴⁴

Since the decision, courts have used the Windsor case in different ways, some have applied it while not addressing the reasoning of the decision. In other cases, the ambiguity in the Windsor case has created different interpretations in later decisions. Courts have also argued whether the case relied on the issues of federalism or equal protection and what was the basis of revision that the Supreme Court applied. Also, others have used it to decline the precedential decisions.⁴⁵

39 Strasser, Mark, Whats’s next after Windsor? In: Elon Law Review, Vol. 6 2014, 400.

40 Strasser, Mark Whats’s next after Windsor? In: Elon Law Review, Vol. 6 2014, 401.

41 http://www.documentcloud.org/documents/717750-supreme-court-ruling-on-doma-annotated.html 34.

19.12.2014

42 http://www.thedailybeast.com/articles/2012/05/31/clarence-thomas-and-doma.html 19.12.2014

43 http://talkingpointsmemo.com/dc/could-clarence-thomas-vote-in-favor-of-gay-marriage 19.12.2014

44 http://money.cnn.com/2013/06/28/pf/taxes/same-sex-marriage-windsor/ 19.12.2014

45http://www.washingtonpost.com/politics/courts_law/supreme-court-was-gay-marriage-settled-in-1972- case/2014/08/17/1a5e41f8-23c6-11e4-86ca-6f03cbd15c1a_story.html 19.12.2014

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REFERENCES, ARTICLES

[1] Loveland Ian, The Right to Engage in Same-sex Marriage in the United States? In: European Human Rights Law Review, Vol. 1 2014

[2] Strasser, Mark, Whats’s next after Windsor? In: Elon Law Review, Vol. 6 2014

[3] Tipler, Kathleen, Obama Administration's Non-defense of DOMA and Executive Duty To Represent, In: Maryland Law Review, Vol. 73 2013 REFERENCES, INTERNET

[1] http://www.supremecourt.gov/about/about.aspx

[2] http://legaldictionary.thefreedictionary.com/Defense+of+Marriage+Act+of+

1996

[3] http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

[4] http://www.documentcloud.org/documents/717750-supreme-court-ruling-ondoma-annotated.html

[5] http://www.whitehouse.gov/blog/2013/06/27/obama-administration- statements-supreme-court-s-doma-ruling

[6] http://nepszava.hu/cikk/624667-washington-alkotmanyellenes-a- meleghazassagok-hatranyos-megkulonboztetese

[7] http://kitekinto.hu/amerika/2013/07/12/erzdnek_a_meleghazassag_hatasai/#.

VIwFitKG-jh

[8] http://thomas.loc.gov/cgibin/bdquery/z?d113:SN00815:@@@D&summ2=m

&

[9] http://www.documentcloud.org/documents/717750-supreme-court-ruling-ondoma-annotated.html

[10]http://www.nytimes.com/interactive/2013/06/26/us/annotated-supreme- court-decision-ondoma.html?_r=2&

[11]http://www.alliancedefendingfreedom.org/content/campaign/2013/SOTUS- on-Marriage/docs/Legal-Summary-Windsor.pdf

[12]http://finduslaw.com/us-constitution-5th-14th-amendments [13]http://www.law.cornell.edu/wex/fifth_amendment

[14]http://cnsnews.com/news/article/alito-and-thomas-dissentconstitution-does- not-guarantee-right-enter-same-sex-marriage

[15]http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/26/the- supreme-court-ended-proposition-8-heres-what-that-means/

[16]http://www.thedailybeast.com/articles/2012/05/31/clarence-thomas-and- doma.html

[17]http://talkingpointsmemo.com/dc/could-clarence-thomas-vote-in-favor-of- gay-marriage

[18]http://money.cnn.com/2013/06/28/pf/taxes/same-sex-marriage-windsor/

[19]http://www.washingtonpost.com/politics/courts_law/supreme-court-was- gay-marriage-settled-in-1972-case/2014/08/17/1a5e41f8-23c6-11e4-86ca- 6f03cbd15c1a_story.html

[20]http://www.buzzfeed.com/chrisgeidner/house-rules-in-new-congress-allow- continued-doma-d#.umZaR3vb