The first briefs will be filed in Edith Windsor’s challenge to Section 3 of the Defense of Marriage Act (DOMA), United States v. Windsor, on January 22. Edith “Edie” Windsor is an 83 year old widow from New York. She met Thea Spyer more than 40 years ago; they started dating after two years and got engaged shortly thereafter. During that time there was no possibility of two women marrying: it was during the era of the Stonewall riots, and right around the time that two men attempted to get married in Minnesota, only to have their case, Baker v. Nelson, reach the Supreme Court and earn a one-sentence summary dismissal before any arguments or briefing.
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Windsor was not out as a lesbian and she says she couldn’t have imagined living as a gay woman or finding someone to love until she met Spyer.
As Windsor told Buzzfeed:
“I certainly did not want to be queer,” she says, looking off to the side of the room while talking about an era when President Eisenhower added “sexual perversion” to the possible grounds for dismissal from public service. “There was no way. I could not imagine a life that way. I wanted to be like everybody else. You marry a man who supports you – it never occurred to me I’d have to earn a living, and nor did I study to earn a living.”
What would a queer life have been?
“I had no idea what that life would have been, except underground. And denigrated. I didn’t think there was anything inferior about me, but I knew that a lot of my friends would think that if they knew. And I lied all the time. My big sister knew, and ultimately became very homophobic. It was a hidden world. And Philadelphia didn’t have much of that hidden world, to my knowledge.”
She knew of some lesbians, women who came out of the Army at the same time that her brother and eventual husband did. “I recognized [them] as such, but even the fact of their being recognizable was another threat to me. I wasn’t recognizable, so I was safe.
“Though I knew I was them, I didn’t look like it.”
Not looking like the few lesbians Windsor knew wasn’t enough to live life married to a man and they were married less than a year. Even that, though, proved to be difficult.
“I would see two women together on a Saturday night, and I would be jealous,” she says. “I had never been out with a woman on a Saturday night, never with girlfriends even, always had dates with boys. Finally, I said to him, ‘Honey, you deserve somebody who thinks you’re about the best thing that could happen in the world, and I need something else.’ And we split.” She did tell him the reason was her attraction to women. “He was too good to not tell.”
He took the news hard, but she says that it turned out for the best because he did meet a woman who fit Windsor’s hopes for him and they had children and a life together. “I didn’t talk to him again for a lot of years, and he called on my 70th birthday to say, ‘I still love ya.'”
She and Spyer met and fell in love; they became engaged, and then Spyer was diagnosed with multiple sclerosis. She gradually lost her ability to walk and was confined to a wheelchair. Spyer and Windsor remained side by side through all this and then, when it seemed like Spyer didn’t have a lot of time left, they decided to get married in Canada in 2007 instead of waiting for New York to make marriage equality legal.
Spyer died in 2009. Still grieving from the loss of her partner of more than 40 years, Windsor received a tax bill for over $363,000 from the government. Under Section 3 of DOMA, “spouse” refers to an opposite-sex spouse. Windsor had to pay an estate tax bill she would have been exempted from had she married a man.
She decided to sue in federal court for a tax refund of her money and a declaration that Section 3 of DOMA is unconstitutional under the Constitution’s guarantee of “equal protection of the laws” and and injunction prohibiting enforcement.
Around the same time, LGBT legal organizations were filing their own challenges to Section 3 of DOMA. Gay and Lesbian Advocates and Defenders (GLAD) filed a couple of lawsuits, and Lambda Legal and others filed challenges.
Eventually, GLAD won one of its challenges at the First Circuit Court of Appeals, marking the first time an appeals court struck down Section 3 of DOMA.
In February 2011, the Obama administration’s Justice Department dropped its defense of Section 3 of DOMA, and then filed a brief in Golinski v. Office of Personnel Management, Lambda Legal’s case, attacking the statute’s constitutionality and suggesting that laws classifying people on the basis of sexual orientation should be subjected to a heightened form of judicial scrutiny. The Equal Protection Clause of the 14th Amendment which applies to the states (and the implied equal protection principles found in the Fifth Amendment which apply to the federal government) is designed to eliminate class-based legislation. Basically, legislators can no longer single out classes of people for differential treatment based on their membership in the class. But there are different levels of judicial review of class-based statutes, because not all of them are based on unconstitutional principles. Laws that classify people on the basis of race are subjected to “strict scrutiny”, the most stringent form of review. It’s possible for a law to survive strict scrutiny but it’s incredibly difficult, and necessarily so, because laws designed to classify people on the basis of race are more often than not written to hurt racial minorities.
Laws that classify on the basis of sex are subjected to intermediate scrutiny. This isn’t as rigorous as strict scrutiny but it is still strengthened review of discriminatory laws.
The most important thing to know about these levels of scrutiny is this: if a law is reviewed under strict or intermediate scrutiny, it’s up to the government (or the law’s defenders depending on the case) to explain to the court how the statute is not invidious discrimination. The evidence of the law’s constitutionality has to be proved by the government itself.
Under the most lenient “rational basis” review, the person bringing the court challenge has to negate all the rational reasons for the law. And since under rational basis review, the reasons a law may be constitutional are not confined to the legislative history or the law’s text itself and can be, essentially, made up on the spot by a judge (“rational speculation” as to the reasons for the law’s existence), most laws survive rational basis scrutiny.
In other words, the United States Department of Justice itself suggested in February 2011 that the government has a long history of discriminating against gays and lesbians so laws written by the United States Congress (and the states) should be subjected to a more rigorous scrutiny. This, needless to say, quickly changed the entire legal calculus in these cases. The First Circuit did not adopt the “heightened scrutiny” approach, suggesting that it’s up to the Supreme Court (which has so far refused to address the level of scrutiny that should be applied to laws classifying people on the basis of sexual orientation.) But the stance taken by the Justice Department reverberated in the lower courts. In Lambda Legal’s Golinski case, the district court judge applied heightened scrutiny to strike down Section 3 of DOMA.
During the initial phase of Windsor’s case at the district court, House Republicans filed a brief alleging that her sexual orientation was “a choice” because she was married to a man before coming out as a lesbian and falling in love with Spyer. Windsor had to file an affidavit in reply fighting against the idea that she made a choice in her sexual orientation.
After the First Circuit’s Gill decision and House Republicans’ petition to the Supreme Court for review of that case, the Justice Department made the decision to petition the Supreme Court for review before judgment at the court of appeals in Golinski. (They had also filed their own petition in Gill so that if the Court took up that case there may not be an issue of whether the Court has jurisdiction to hear it.) This is likely because before Justice Kagan was confirmed to the Court, she suggested she’d probably need to recuse herself from Gill since she had worked on the case as Solicitor General.
In fact, while House Republicans were refusing to file petitions before judgment at the appeals courts in any cases – and opposing all the ones filed by the Justice Department and the plaintiffs – the Justice Department’s strategy involved only filing petitions in Gill and Golinski.
Then, Windsor broke from the apparent strategy and her lawyers filed their own petition for Supreme Court review before judgment at the appeals court. This was the first time a plaintiff took the unusual step of filing a petition before judgment in these cases. That wouldn’t happen again until GLAD filed a petition before judgment at the appeals court in Pedersen v. Office of Personnel Management.
The petitions initially weren’t received very well. House Republicans – through the Bipartisan Legal Advisory Group (BLAG) – opposed it outright as they had all the Justice Department petitions. The Justice Department asked the Court to hold the Windsor petition until after it considered Golinski and Gill. (One reason they didn’t consider Windsor’s petition worthy of review at that stage was the fact that she was married in Canada. House Republicans raised the question of whether her Canadian marriage would have been recognized in New York in 2009. Since the Second Circuit hadn’t reviewed the case yet, they had no chance to either make a ruling on standing or send the case to the New York Court of Appeals to get the answer.)
In September, though, shortly before the Gill petition would be ready for a conference at the Supreme Court, the Justice Department filed its own petition in Windsor and in Pedersen. The Justice Department’s Windsor petition would be the one the Court ultimately accepted for review, though the petition itself is more modest: they asked the Court to grant the petition in Golinski or Gill before considering Windsor in part because as a petition before judgment at the court of appeals, it was a longshot, and with Windsor’s standing issues, it was even more difficult to see why the Court would take it over Golinski.
But then the Second Circuit Court of Appeals issued its ruling earlier than expected. The panel – made up of two Democratic-appointed judges and one Republican-appointed judge – struck down Section 3 of DOMA as unconstitutional and applied a heightened level of judicial scrutiny. (One judge, an appointee of President Clinton, dissented.) Notably it was the first time in history that an appeals court said that laws that discriminate against gays and lesbians should be reviewed under heightened scrutiny.
After the decision came down, not only was the petition no longer one for “cert before judgment”, but the question of Windsor’s standing was answered. Instead of sending the question back to the New York Court of Appeals, the Second Circuit agreed that New York would have recognized her marriage as valid. They cited lower court opinions throughout the state holding that same-sex marriages from out of state were valid, and they also pointed to the New York court’s deliberate avoidance of answering the question when they could have addressed it, as a reason to accept that Windsor has standing and the question should be left to the Second Circuit for purposes of this case.
House Republicans opposed the Justice Department’s petition and Windsor agreed that it was worthy of review but disagreed that a “tiered” approach was necessary, where some cases took precedence over hers. The Justice Department also noted in a filing that it would take further action at the Supreme Court in light of the Second Circuit’s decision. This was a unique situation – parties asked for review before judgment at the court of appeals and the judgment was issued before the Supreme Court even held a conference for the case.
Ultimately, the Justice Department changed its mind: it submitted a brief telling the Court that since the Second Circuit ruled, the Windsor case is now the best case for the Court to review the constitutionality of Section 3 of DOMA.
When the Court finally held its conference – after a few delays – it chose the Justice Department’s petition in the case. The reason seems simple enough: at the time, there were only two petitions in the Windsor case, the Justice Department’s and Windsor’s herself. She had filed her petition before judgment at the court of appeals and she did so after winning at the district court level. As the prevailing party who was already facing other Article III standing issues, there would have been a lot of questions to answer before even reaching the merits of her case. But the Justice Department, despite getting what it wanted when the Second Circuit struck down Section 3 of DOMA as unconstitutional, had judgment entered against its clients (the Executive Branch) so it seemed to make more sense to grant their petition.
But then the Court added standing and jurisdiction questions to be briefed and argued: whether the Court can hear the case since the Justice Department agrees the law is unconstitutional, and whether BLAG has Article III standing.
This is in some ways not as complicated as it sounds. The Court wants to know if the fact that the Justice Department also thinks Section 3 of DOMA is unconstitutional means that there are no true opposing parties in the case. If they granted the petition of a party when that party agrees with the other side there would not be a way for the Court to reach the merits of the case.
And there was a dispute all along in the lower courts about BLAG’s standing. The Supreme Court has never ruled on whether a “legal advisory group” for Congress has legal standing to appear in court to represent the interests of Congress. And BLAG only represents the House and not the entire Congress. Added to that, they only took a 5 member
vote and only one political party voted to defend DOMA. The vote was 3-2. The Supreme Court has held that Congress has standing to defend its own laws (in a case called INS v. Chadha) but since BLAG came into existence decades ago, they have never definitively ruled that the legal group has standing to represent the interests of Congress.
The Court appointed an outside attorney (and law professor) named Victoria C. Jackson to argue that BLAG lacks standing and that the Justice Department’s agreement with Windsor and the lower court deprives the Court of jurisdiction to hear the case. The other parties will argue that there’s a live case or controversy here.
Even still, in early January, BLAG filed its own petition for review in the case, so that, they suggest, the Court can review the merits. The question is of course if BLAG’s standing issues mean they’re not a proper party either.
January 22 the first briefs are due in this case (and in the Prop 8 case.)
The merits question as written in the Justice Department’s petition is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
Without the benefit of reading the new briefs, it can be assumed that BLAG will argue these justifications for Section 3 of DOMA:
(1) To maintain uniformity
(2) To save money
(3) To preserve a traditional understanding of marriage
(4) To encourage responsible procreation
They will also argue that Baker v. Nelson is still binding precedent and must be followed. And they will suggest that Section 3 of DOMA should only be reviewed under rational basis – that no heightened judicial scrutiny is necessary because gays and lesbians don’t fit the criteria for receiving heightened scrutiny.
Those are:
(1) Whether the class has historically been subjected to discrimination
(2) Whether the class’s defining characteristic relates to its ability to contribute to society
(3) Whether the class has an obvious or immutable trait
(4) Whether the class is a minority or politically powerless.
Importantly, not all of these factors need to be met.
BLAG has conceded that gays and lesbians have suffered from discrimination. They argue that it is not the same level of discrimination as other groups. At the Second Circuit, Paul Clement pointed to the right to vote as an example. He said gays and lesbians have never been denied the right to vote for being gay or lesbian but black people and women have.
BLAG has argued that the second factor means whether the defining characteristic relates to the right they’re seeking. They’ve said that gay people can’t procreate together so essentially it does affect their right to marry (which they say is based on procreation.)
As to the third, BLAG has argued that sexuality is fluid, so much so that the characteristic is not “immutable” enough. They’ve brought in studies to show that sexual orientation “changes” for some people.
As to the political powerlessness argument, BLAG has argued that the recent wins at the ballot box and the repeal of Don’t Ask, Don’t Tell prove that gays and lesbians are not politically powerless.
Windsor and the Justice Department cite a long history of discrimination against gays and lesbians by the federal government, state and local governments, and even individuals. Stuart Delery, who is gay, argued for the Justice Department at the Second Circuit that being gay or lesbian bears no relation to one’s ability to contribute to society. Windsor and the Justice Department had expert witnesses and affidavits on the immutability of sexual orientation and in some instances even proved that BLAG was misrepresenting some of the research they cited. And Windsor argues that according to Supreme Court precedent, the group only has to be relatively politically powerless. When laws impacting women were afforded heightened scrutiny, they’d already fought for and won the right to vote via a constitutional amendment, the Civil Rights Act protected against sex discrimination, among other advancements.
In terms of the justifications for Section 3 of DOMA listed above, Windsor has argued that not only should heightened scrutiny apply, but the objectives are not even “rationally related” to what the law actually does. (For example, the law simply defines marriage as between a man and a woman for federal purposes; how does that encourage responsible procreation?) And Windsor has argued that “tradition” is not a basis for a law (citing Lawrence v. Texas, which said that rather straightforwardly.) And Windsor has pointed out that neither saving money nor maintaining uniformity are legitimate bases for a law. And further, a study was released showing that DOMA actually costs the federal government money.
BLAG argues that Baker should be followed. But Windsor has pointed out that the jurisdictional statement (the issues to be decided in the case) in Baker refers only to sex discrimination and not sexual orientation discrimination. And later Supreme Court precedent has said that the type of case Baker was (a summary dismissal “for want of a substantial federal question”) is precedent but only as to the precise issues involved and necessarily decided. And another case has said that if “doctrinal developments” have changed since the time the case was decided it can erode the foundation of the holding. And since Baker, heightened scrutiny came into existence. Not to mention, Bowers, Romer (which held that animus against a group is no basis for a law), and Lawrence were decided in favor of gays and lesbians.
As far as standing, the Justice Department has argued that since the Executive Branch has a judgment entered against it, it remains an “aggrieved” party with an injury and can remain in the case. And BLAG argues that Congress can intervene to defend statutes when the Executive Branch decides not to, otherwise the Executive Branch could easily nullify a law it doesn’t like.
If the Court doesn’t see any rational reasons for the federal government to define marriage in a restrictive way when nearly 1/5 of the states define it in a different way, Edith Windsor wins her case and gets her $363,000 back along with a judgment that Section 3 of DOMA is unconstitutional. (Section 1 is just the title, and Section 2 is a redundant statute that says a state doesn’t have to recognize another state’s same-sex marriage. They wouldn’t have to without the statute – there is a public policy exception to the Constitution’s Full Faith and Credit Clause.)
If the Court somehow finds rationality in this attempt to, as the House Report on DOMA says, “promot[e] [and ‘encourage’] heterosexuality” then Windsor will lose and another Supreme Court holding (like 1986’s Bowers v. Hardwick) will remain on the books.
As that report says:
There are, then, significant practical reasons why government affords preferential status to the institution of heterosexual marriage. These reasons–procreation and child-rearing–are in accord with nature and hence have a moral component. But they are not–or at least are not necessarily–moral or religious in nature.
For many Americans, there is to this issue of marriage an overtly moral or religious aspect that cannot be divorced from the practicalities. It is true, of course, that the civil act of marriage is separate from the recognition and blessing of that act by a religious institution. But the fact that there are distinct religious and civil components of marriage does not mean that the two do not intersect. Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexual
ity. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: `[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.’
Or perhaps the Supreme Court will rely on its own past decisions and hold that moral disapproval, animus, or tradition can’t be used as justifications to uphold Section 3 of DOMA. We’ll know more after the oral argument on March 27. A decision is expected in June.
