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Kenya Law / Blog / Case Summary: US Supreme Court Declares Section 3 of the Defense of Marriage Act which Defines Marriage to Exclude Same-Sex Partners, Unconstitutional

US Supreme Court Declares Section 3 of the Defense of Marriage Act which Defines Marriage to Exclude Same-Sex Partners, Unconstitutional

United States v Windsor, Executioner of the Estate of Spyer et. al 12-307

Supreme Court of the United States

Majority holding – Kennedy A. (A.J), Ginsburg R.B (A.J), Breyer S. (A.J), Sotomayor S (A.J), Kagan E. (A.J),

Dissenting opinions – Roberts G., (C.J),Scalia A. (A.J), Thomas C (A.J), Alito S. (A.J)

June 26, 2013

Reported by Monica Achode



Whether Section 3 of the Defense of Marriage Act, which defined the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprived same-sex couples who were lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.


Fifth Amendment, US Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Section 3 of the Defense of Marriage Act (DOMA)

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.


Brief History

Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007 under the provisions set forth in the Canadian Civil Marriage Act. The validity of their marriage was subsequently recognized by New York under common-law principles of comity. The State of New York recognized the marriage. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by section 3 of the federal Defense of Marriage Act (DOMA), which amended the Dictionary Act—a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations—to define “marriage” and “spouse” as excluding same-sex partners. Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied.

Windsor brought this refund suit, contending that DOMA violated the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend section 3’s constitutionality. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend section 3’s constitutionality. The District Court permitted the intervention. On the merits, the court ruled against the United States, finding section 3 unconstitutional and ordering the Treasury to refund Windsor’s tax with interest. The Second Circuit affirmed, whereupon the matter was brought to the Supreme Court.


(Majority opinion by Kennedy, Ginsburg, Breyer, Sotomayor and Kagan)

  1. The Court had jurisdiction to consider the merits of the case. It clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court, but the Executive’s decision not to defend section 3’s constitutionality in court while continuing to deny refunds and assess deficiencies introduced a complication. Given the Government’s concession, amicus contended, once the District Court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elided the distinction between Article III’s jurisdictional requirements and the prudential limits on its exercise, which were essentially matters of judicial self-governance. Here, the United States retained a stake sufficient to support Article III jurisdiction on appeal and in this Court. The refund it was ordered to pay Windsor was a real and immediate economic injury, even if the Executive disagreed with section 3 of DOMA. Windsor’s ongoing claim for funds that the United States refused to pay thus established a controversy sufficient for Article III jurisdiction.
  2. Prudential considerations, however, demanded that there be concrete adverseness, which sharpened the presentation of issues upon which the court so largely depended for illumination of difficult constitutional questions. Unlike Article III requirements—which had to be satisfied by the parties before judicial consideration was appropriate—prudential factors that counsel against hearing this case were subject to countervailing considerations that might outweigh the concerns underlying the usual reluctance to exert judicial power. One such consideration was the extent to which adversarial presentation of the issues was ensured by the participation of amici curiae prepared to defend with vigor the legislative act’s constitutionality.
  3. BLAG’s substantial adversarial argument for section 3’s constitutionality satisfied prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agreed. This conclusion did not mean that it was appropriate for the Executive as a routine exercise to challenge statutes in court instead of making the case to Congress for amendment or repeal. But this case was not routine, and BLAG’s capable defense ensured that the prudential issues did not cloud the merits question, which was of immediate importance to the Federal Government and to hundreds of thousands of persons.
  4. DOMA was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress had enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, had a far greater reach. Its operation was also directed to a class of persons that the laws of New York, and of 11 other States, sought to protect. Assessing the validity of that intervention required discussing the historical and traditional extent of state power and authority over marriage.
  5. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government used the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question was whether the resulting injury and indignity was a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treated as alike the federal law deemed unlike by a law designed to injure the same class the State sought to protect. New York’s actions were a proper exercise of its sovereign authority. They reflected both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
  6. By seeking to injure the very class New York sought to protect, DOMA violated basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality had to at the very least mean that a bare congressional desire to harm a politically unpopular group could not justify disparate treatment of that group. DOMA could not survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operated to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This was strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect were 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.
  7. DOMA’s history of enactment and its own text demonstrated that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments were just as candid about the congressional purpose. DOMA’s operation in practice confirms this purpose. It frustrated New York’s objective of eliminating inequality by writing inequality into the entire United States Code. DOMA’s principal effect was to identify and make unequal a subset of state-sanctioned marriages. It contrived to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forced same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

The judgment of the Court of Appeals for the Second Circuit affirmed.

(Dissenting Opinion by Roberts joined by Scalia, Thomas, Alito)

  1. Per Roberts: The Supreme Court lacked jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.
  2. The majority extensively chronicled DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA rejected the long-established precept that the incidents, benefits, and obligations of marriage were uniform for all married couples within each State. But there was no such departure when one State adopted or kept a definition of marriage that differed from that of its neighbor, for it was entirely expected that state definitions would vary, subject to constitutional guarantees, from one State to the next. Thus, while the State’s power in defining the marital relation was of central relevance to the majority’s decision to strike down DOMA, that power would come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too would the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.
  3. The Supreme Court would in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, was not before the court in the case, and it lacked jurisdiction to consider it.
  4. Per Scalia & Thomas: The case was about power in several respects. It was about the power of the people to govern themselves, and the power of the Court to pronounce the law. The opinion aggrandized the latter, with the predictable consequence of diminishing the former. The Supreme Court had no power to decide the case. And even if it did, it had no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points sprung forth from the same diseased root: an exalted conception of the role of this institution in America.
  5. The judicial Power was not, as the majority believed, the power to say what the law was giving the Supreme Court the “primary role in determining the constitutionality of laws. The majority must have had in mind one of the foreign constitutions that pronounced such primacy for its constitutional court and allowed that primacy to be exercised in contexts other than a lawsuit. Judicial power was the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagreed not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it became the province and duty of the judicial department to say what the law was.
  6. Per Alito: What Windsor and the United States sought was not the protection of a deeply rooted right but the recognition of a very new right. They sought this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges had cause for both caution and humility. Judges were certainly not equipped to make such an assessment. The Members of the Court had the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be its duty to enforce that right. But the Constitution simply did not speak to the issue of same-sex marriage. In the American system of government, ultimate sovereignty rested with the people, and the people had the right to control their own destiny. Any change on a question so fundamental was to be made by the people through their elected officials.
  7. The approach that Windsor and the United States advocate was misguided. The equal protection frame- work, upon which Windsor and the United States relied, was a judicial construct that provided a useful mechanism for analyzing a certain universe of equal protection cases. But that framework was ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turned on what marriage was.
  8. Underlying the equal protection jurisprudence was the central notion that a classification had to be reasonable, not arbitrary, and had to rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced would be treated alike. The modern tiers of scrutiny—on which Windsor and the United States relied so heavily—were a heuristic to help judges determine when classifications had that fair and substantial relation to the object of the legislation.
  9. The so-called rational-basis review applied to classifications based on “distinguishing characteristics relevant to interests the State had the authority to implement.” The equal protection of the laws had to coexist with the practical necessity that most legislation classified for one purpose or another, with resulting disadvantages to various groups or persons. As a result, in rational-basis cases, where the court did not view the classification at issue as inherently suspect, the courts were been very reluctant, as they ought to have been in the federal system and with the respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.

Section 3 of DOMA did not violate the Fifth Amendment

In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA to be unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment

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