The Windsor case and the Road Ahead - Melvin
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The Windsor case and the Road Ahead

by Melvin Cook

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On June 26, 2013, the United States Supreme Court decided the case of United States v. Windsor, 570 U.S. ____________ (2013) (Docket No. 12-307), in which it held Section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional as a violation of the equal liberty protected by the Fifth Amendment’s due process provision. Section 2 of DOMA was not at issue. That section permitted States to refuse to recognize same sex marriages performed elsewhere.

DOMA was enacted in 1996 at a time when states were just beginning to consider the issue of same sex marriage, something that had hitherto not been a part of the nation’s marriage tradition. In fact, at the time of DOMA’s enactment, no state allowed same sex marriage. But the debate was on the horizon and Congress saw fit to enact legislation defending traditional marriage at the federal level. Section 3 of DOMA defined marriage as between a man and a woman for purposes of federal laws and regulations.

Because the Windsor case has had far-reaching implications in the area of family law, a primary area in which I practice, I have made this attempt to analyze it and try to understand it. The case may also provide a glimpse into the Supreme Court’s thinking on issues it will decide later this year, prior to the end of its June term.

I realize that the issue of same sex marriage is a hot button social issue on which opposing sides feel passionately, so I will attempt to tread lightly in this analysis of the case.

In 2007 Edith Windsor and Thea Spye

 

r wed in Ontario Canada. At the time their state of residence, New York, did not permit same sex marriages. However, New York later changed its laws to recognize same sex marriages performed elsewhere. Still later, New York amended its laws to recognize same sex marriages.

Ms. Spyer passed away in 2009, leaving her entire estate to Ms. Windsor. Because of Section 3 of DOMA, Ms. Windsor was not allowed to claim the federal estate tax exemption for spouses. She paid $363,053 in estate taxes and then filed a refund lawsuit in federal District Court, arguing that DOMA violated the equal protection provisions of the United States Constitution.

Ms. Windsor prevailed on her tax refund claim in District Court, obtaining a judgment ordering the United States’ Treasury to refund the estate tax she had paid. While the litigation was pending, the U.S. Attorney General notified Congress that the Justice Department had determined it would no longer defend DOMA’s constitutionality. Thus, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the lawsuit. The federal District Court allowed that intervention.

The Second Circuit Court of Appeals affirmed the judgment of the District Court on appeal. The United States, however, did not initially comply with the judgment.

The case was accepted by the Supreme Court of the United States. Justice Kennedy wrote the majority opinion for the Court. One of the big issues in the case related to whether or not there was a “case or controversy” sufficient to invoke the Court’s jurisdiction under Article III Section 2 of the United States’ Constitution.

The reason this was an issue was because the principal parties to the case, namely Windsor and the Unites States, were both in agreement with the lower court’s ruling. In fact, both parties urged the Supreme Court to uphold the lower Courts’ rulings and declare Section 3 of DOMA unconstitutional. (Justice Scalia in his dissent referred to the case on appeal as a “friendly scrimmage”). At first blush, it would appear then that there was no lively controversy, since both parties agreed with the judgment of the lower court.

But Justice Kennedy, writing for the majority, held that the refund the United States was ordered to pay constituted a real and immediate economic injury to the United States’ Treasury, even if the Executive disagrees with Section 3 of DOMA. He emphasized the distinction between prudential considerations of jurisdiction and the concrete jurisdictional requirements of Article III.

Prudential concerns sometimes militate against the Supreme Court hearing cases even when there is technical jurisdiction under Article III. Justice Kennedy opined, however, that such prudential concerns were amply satisfied by the vigorous and capable legal representation of amici curiae, or friends of the Court such as BLAG and the Court-appointed amici, who were allowed to intervene in the suit to defend DOMA’s constitutionality. Citing Baker v. Carr, 369 U.S. 186 (1962), Justice Kennedy opined that the intervention of these amici curiae helped to preserve the concrete adverseness that sharpens the issues of a case and illuminates for the Court the difficult constitutional issues before it.

In making the ruling that there was jurisdiction, the majority relied heavily on the case of INS v. Chadha, 462 U.S. 919 (1983). In that case a statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent. On appeal, the INS presented the Executive’s view that the statute was unconstitutional. However, the INS continued to abide by the statute requiring the deportation of Chadha. The INS was sufficiently aggrieved by the Court of Appeals decision preventing it from taking action it would otherwise take. Thus, there was found to be a case or controversy, even if the INS welcomed the lower Court’s judgment. Ibid.

Having dispatched of the jurisdictional issue, Justice Kennedy went on to hold for the majority that Section 3 of DOMA was unconstitutional under the due process clause of the Fifth Amendment, as further illuminated by the Court’s understanding of equal protection issues set forth in the Fourteenth Amendment.

In making this ruling, Justice Kennedy emphasized the majority’s belief that the state of New York, in recognizing same sex marriages, had bestowed upon same-sex couples “a status of immense dignity and import.” He wrote that the purpose underlying Section 3 of DOMA was a “bare Congressional desire to harm a politically unpopular group.” This purpose the Court found to be at odds with the Constitution.

Interestingly, much of the majority’s opinion pays homage to the principles of federalism. So, for example, Justice Kennedy wrote that, subject to constitutional guarantees such as those set forth in the case of Loving v. Virginia, 38 U.S. 1 (1967) (striking down state anti-miscegenation laws), the area of regulation of domestic relations traditionally has been almost entirely an exclusively state law matter. Sosna v. Iowa, 419 U.S. 393 (1975). The majority found it unusual that DOMA would attempt to intervene in an area that is traditionally reserved almost exclusively to the states.

But the majority held that the Constitution’s promise of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528-535 (1973). Thus, the majority’s holding relies heavily on its belief that Congress (and presumably, the President who signed the law) was motivated by animus against a politically vulnerable class. This reasoning opened the door for Justice Scalia’s withering dissent, which is described below.

There are three dissenting opinions in the case, each of which is noteworthy in its own right, especially given that the case was decided by a razor thin 5-4 majority.

Justice Roberts joined Part I of Justice Scalia’s dissent, which focused on the case and controversy requirement of Article III. However, Justice Roberts also wrote his own dissent in order to emphasize his belief that principles of federalism were central to the majority’s holding. He noted his belief that the majority had painted with too broad a brush when it suggested that the votes of 342 Congressmen, 85 Senators and the President were motivated by a “bare desire to harm” a politically unpopular class. He disagreed with Justice Scalia’s concern that the Court’s holding could and would be broadly construed. He took the majority at its word when in the penultimate sentence of its holding, it stated that “[t]his opinion and its holding are confined to those lawful marriages” performed in states that had previously recognized same sex marriage.

Justice Scalia was joined by Justice Thomas in his dissent and by Justice Roberts in part I of his dissent. He wielded his acerbic pen like a sword as he slashed away at the majority’s holding. He started out by stating his belief that the majority was eager, “hungry” even, to share its legal opinion with the world. He derided the Court’s holding that there was an actual case or controversy before the Court, stating his belief that the case should have ended when the principal parties agreed with the lower court’s judgment. He believed the case was a “friendly scrimmage” and a “contrivance.”  He set forth in stark terms his concern that the Court’s holding had the effect of injecting itself into the middle of a matter that he believes should be decided through democratic means, rather than by judicial fiat. He distinguished the Chadha case, stating his belief that the Court had never found Article III jurisdiction in a case in which the principal parties were essentially non-adversarial. He noted for the record his ongoing skepticism of the Court’s “tiers of scrutiny” approach to equal protection jurisprudence, although that approach was not apparently applied in the instant case.

In the second section of his dissent, Justice Scalia expressed his foreboding, predicting that the Court was attempting to lay the groundwork for a much broader holding in a coming term. He criticized what he viewed as the vagueness of the Court’s holding, stating that lower courts should feel free to “distinguish away” the case.

Justice Scalia would have dismissed the appeal with instructions to the Second Circuit Court to vacate its judgment for lack of jurisdiction.

Justice Alito, who was joined by Justice Thomas in parts II and III of his dissent, stated his belief that the United States was clearly not a party with standing to petition the Court. This is because, far from disagreeing with the lower’s court’s ruling against it, the United States was arguing emphatically in favor of the judgment.

However, Justice Alito stated his belief that BLAG did have standing to assert the constitutionality of DOMA because it represented Congress, whose core function of legislating was impaired by the lower court’s rulings.

Justice Alito stated his belief that while the issue of same sex marriage is an emotional and important one for public policy debate, it is not a difficult constitutional question. He opined that the Constitution simply does not say one way or another what the outcome must be in this debate. Citing the cases of Washington v. Glucksberg,521 U.S. 702–721 (1997); and Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), he noted that in order for the Court to find substantive rights not found in the text of the Constitution, those rights must be firmly rooted in the country’s history and tradition, or be “‘implicit in the concept of ordered liberty”, such that “neither liberty nor justice would exist if they were sacrificed.” He opined that what Windsor and the United States were seeking was a new right, something the Court was ill-equipped to consider and grant, and which should therefore take place through democratic channels, rather than be judicially imposed.

(We see in these dissents the conservative wing’s skepticism of “judicial activism”, or judicially-imposed policy that they believe should more appropriately be enacted by the legislative branch.).

Justice Alito noted that the majority had not accepted Windsor’s or the United States’ argument urging the creation of a new class, that of sexual orientation, that would trigger the Court’s heightened strict scrutiny. He described the three basic tiers of scrutiny traditionally applied by the Supreme Court when suspect classes are burdened by a laws — namely; strict scrutiny, intermediate scrutiny and rational basis scrutiny.

Strict scrutiny applies when a protected class, such as race is burdened by a law, or if a fundamental Constitutional right is burdened. Laws burdening these categories must be “narrowly tailored” to achieve a “compelling” government objective in order to pass constitutional muster.

Intermediate scrutiny applies when a legislative classification burdens one sex or the other. Such laws must be “substantially” related to an “important” government objective

The lowest level of scrutiny is rational basis scrutiny, which applies when a law makes classifications that are not historically suspect. Such laws must be “rationally” related to a “legitimate” government purpose.

Justice Alito stated that by asking for some type of heightened scrutiny in this particular case, what Windsor and the United States were really doing was seeking to have the Court resolve a dispute between two competing views of marriage, which in his view is not an appropriate function for the Court.

He went on to discuss these two basic views of marriage. One is the traditional, or conjugal, view that sees marriage as a heterosexual institution. The brief for BLAG had cited the case of Hernandez v. Robles, 7 N. Y. 3d 338, 361, 855 N. E. 2d 1, 8 (2006), which stated that “[u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.”

The second, newer view is what Justice Alito termed the “consent” view of marriage. This view “primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons.” He noted that this view has become increasingly accepted in our society, even among heterosexual couples.

However, Justice Alito observed that in his estimation the Constitution does not codify either one of these views. The legislatures must wrestle with these questions to define which view is for the greater good. Because these views encompass philosophical, social, and moral questions, they must be decided by society as a whole. He points out that at present no one – not social scientists, not philosophers, not historians — can adequately assess the far-reaching implications of widespread acceptance of same-sex marriage, and certainly judges are not equipped for such assessments.

(We see here a “strict constructionist” view of interpreting the Constitution, in which the primary emphasis is given to the text itself, and to its original intent. Or, simply put, the Constitution means what it says, as illuminated by the writings of the Founders who bequeathed it to us).

Justice Alito states in conclusion that to the extent the Court’s opinion rests on the principle that the question of same-sex marriage should be resolved politically at the state level, he wholeheartedly agrees. But he notes that unless the Court is ultimately willing to allow the states to define this issue for themselves, whatever hints of federalism are sounded in the majority’s opinion will soon be scattered to the wind.

The Windsor case paved the way for a federal district court in Utah to strike down laws defining marriage as between a man and a woman. The ground asserted in that opinion was that such laws are not rationally related to a legitimate government purpose.

By ducking the issue last October (see my post from October 6, 2014) and allowing the Utah federal district court and other federal court decisions to stand, the Supreme Court in effect allowed the number of states allowing same-sex marriage to grow to 36, and now “more than 70 percent of Americans live in places where gay couples can marry.” See article by Adam Liptak in New York Time from January 16, 2015, “Supreme Court to Decide Marriage Rights for Gay Couples Nationwide”

https://www.nytimes.com/2015/01/17/us/supreme-court-to-decide-whether-gays-nationwide-can-marry.html?_r=0

(visited March 9, 2015).

The same article points out that the Supreme Court will decide before its current term ends in June, whether or not all 50 states must allow same-sex marriage.

Based on the Windsor case, one may somewhat confidently predict that the upcoming case will be a close one, possibly a 5-4 decision. It seems that more and more Supreme Court decisions these days are decided by that wafer-thin margin. Whether federalism carries the day, or whether another view based on equal protection or due process wins out, remains to be seen.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

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