2nd Circuit Rules DOMA Provision Violates Equal Protection

In an unprecedented analysis of the Defense of Marriage Act, the 2nd Circuit determined that the federal law commonly known as "DOMA," was subject to heightened scrutiny, and under that test, Section 3 of the law that defines marriage and spouse, violates equal protection and was therefore struck down as unconstitutional.

That section defines the words "marriage" and "spouse" as follows:

"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, the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

Edith Windsor married her partner Thea Spyer in Canada in 2007. The same sex couple lived in New York when Ms. Speyer passed away in 2009. Ms. Windsor was then denied the benefit of the spousal deduction for federal estate taxes because section 3 of DOMA bars recognition by the IRS of Ms. Windsor as a "spouse" or to recognize that the couple was married. Ms. Windsor therefore paid $363,053 in federal taxes because the federal government did not recognize her as married.

She challenged the law as unconstitutional and sought a refund of the federal taxes that she paid.

While the constitutionality (or lack thereof) of the DOMA provision is the hot topic leading in most blogs and articles, the 2nd circuit's analysis that led to this conclusion is unprecedented and leading most commentators to believe that this will be the case that the Supreme Court reviews on the issue of same sex marriage.


The first major hurdle in even reaching the question of constitutionality was standing.

For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death. The court recognized that the couple was married in 2007, Ms. Spyer died in 2009, and that New York did not license same sex marriage until 2011.

Thus, the court had to determine whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. Noting that this was an unsettled question of law in New York, the court stated that it had two options: predict what the state of law is by looking at intermediate appellate and trial court rulings, or certify the question to the New York Court of Appeal.

The court declined to certify the question and instead opted to look at intermediate appellate court rulings finding that three of New York's four appellate divisions have concluded that New York recognized foreign same-sex marriages before the state passed its marriage statute in 2011.

Based on their review of the cases (two of which were decided before Ms. Spyer died), the court concluded that Ms. Windsor "has standing in this action because we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer's death in 2009, so that Windsor was a surviving spouse under New York law."

Prior Precedent of Baker v. Nelson not Controlling

In Baker v. Nelson, an appeal from a Minnesota Supreme Court decision finding no right to same sex marriage, the U.S. Supreme Court issued a summary dismissal "for want of a substantial federal question."

The court found that because summary dismissal are limited to the precise issue presented and decided by the dismissal, and that here the issues were not the same as in Baker. "The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states."

The court therefore found that Baker was not controlling.

This determination was the same as that reached by the 1st Circuit earlier this year in Massachusetts v. U.S. Dept of HHS, 682 F.3d 1, 8 (1st Cir. 2012), finding that Baker permitted equal protection review so long as arguments did not "rest on a constitutional right to same-sex marriage."

The court did not rest there however. It found that manifold changes to the Supreme Court's equal protection jurisprudence "constitute another reason why Baker does not foreclose our disposition of this case."

Heightened Test of Intermediate Scrutiny Applies; Not Rational Basis Test

The lower court hearing Windsor's case had analyzed it under the rational basis test. Rational basis review places the burden of persuasion on the party challenging a law, who must disprove "'every conceivable basis which might support it.'"

The court recognized that "the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged."

However, the court found that other court engaged in a more demanding rational basis review when “historic patterns of disadvantage suffered by the group adversely affected by the statute,” as had been done by the lower court in this case and by the 1st Circuit in Massachusetts v. U.S. Dept of HHS. The court expressed concerned with this type of doctrine, as it had not been commented on by the Supreme Court.

But, the court went on to state that no permutation of rational basis was required here, because Section 3 of DOMA is subject to intermediate scrutiny under factors used by the Supreme Court to decide whether a new classification qualifies as a quasi-suspect class:

A. Whether the class has been historically "subjected to discrimination,"
B. Whether the class has a defining characteristic that "frequently bears [a] relation to ability to perform or contribute to society,"
C. Whether the class exhibits "obvious, immutable, or distinguishing characteristics that define them as a discrete group;"
D. Whether the class is "a minority or politically powerless."

The court found that all four factors justify heightened scrutiny: homosexuals as a group have historically endured persecution and discrimination; homosexuality has no relation to aptitude or ability to contribute to society; homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and the class remains a politically weakened minority.

This analysis led the court to conclude that intermediate scrutiny was appropriate and classified the group as "quasi-suspect", but declined to label the group suspect, stating "[w]hile homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require 'our most exacting scrutiny.'"

Finding that the heightened test of intermediate scrutiny applied here is unprecedented. The 2nd circuit is the first court to apply this level of scrutiny to same sex marriage.

DOMA Provision Violates Equal Protection and Is Therefore Unconstitutional

To withstand intermediate scrutiny, a classification must be substantially related to an important government interest, explaining that "substantially related" means "exceedingly persuasive."

The court rejected the four arguments asserted by the defenders of DOMA: 1) maintaining uniform definition of marriage; 2) protecting the fisc; 3) preserving a traditional understanding of marriage; and 4) encouraging responsible procreation.

In doing so, the court reasoned that the emphasis on uniformity was suspicious as the federal government historically deferred to state domestic relations law. Citing the 1st Circuit, the court stated that DOMA was therefore an unprecedented intrusion "into an area of traditional state regulation." Massachusetts, 19 682 F.3d at 13. Further, the law created discord by leaving other inconsistencies in the laws of the states, and creating inefficiencies in that the federal government now has to figure out which state definitions of marriage are entitled to federal recognition and which are not.

With regard to protecting the fisc, the court found that it withdrew benefits and rejected the argument that the law simply did not extend benefits. Moreover, the law was so broad that it affected thousands of laws that have nothing to do with the public fisc.

The court also quickly disposed of the argument related to preserving a traditional understanding of marriage remarking that these arguments were made and rejected in litigation over anti-sodomy laws, and that "because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve' the institution of marriage as one between a man and a woman."

Finally, the court was left unconvinced by the argument that DOMA is in any way related to the goal of encouraging responsible procreation. "Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before." The court found persuasive statements by the 1st and 9th circuits that there was no connection between DOMA's treatment of same sex couples and strengthening opposite sex marital relationships, and that the idea that DOMA could influence sexual orientation was "far-fetched."

As such, DOMA's classification of same-sex spouses was not substantially related to an important government interest, and the court therefore held that Section 3 of DOMA violates equal protection and is therefore unconstitutional.

Question Not Addressed by the Opinion

Throughout the opinion, the court reaffirmed that it is the states that will decide whether or not to recognize same sex marriage, and that their discussion here was limited to analysis of DOMA's marital classification under federal law. The court specifically stated that their discussion was distinct from the analysis necessary to determine whether the marital classification of a state would survive such scrutiny.

That said, at the end of their opinion, the court declared that although same sex marriage was new to history and tradition, "law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door."


Therefore, Ms. Windsor should be refunded her $363,053 from the federal government for federal estate taxes that she paid. Although, as the case is already being appealed, that happening any time soon is not likely.

Many commentators believe that this case is ripe for Supreme Court review, and would make for an ideal test case for the issue of same sex marriage because it involves interpretation of a federal law (and not a state law), and because of the heightened level of scrutiny used by the court in analyzing the federal law at issue. Time will tell…

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