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Wednesday, June 26, 2013

DOMA No More, SCOTUS finds Section 3 Unconstitutional

In the first of a pair of same-sex marriage rights cases decided today, the Supreme Court of the United States declared portions of DOMA (the so-called "Defense of Marriage Act") unconstitutional.  Although there were some concerns about jurisdiction in this case due to the executive branches failure to defend DOMA vigorously the court determined there was jurisdiction and that DOMA is unconstitutional under the equal liberty of persons protected by the Fifth Amendment.

Known as the DOMA case, everything you need to know about United States v. Windsor is summarized below:

Prior to reaching SCOTUS here is what happened:

Edith Windsor and Thea Spyer, two women, met in New York City in 1963 and began a long-term relationship.

Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993.

In 2007, Edith Windsor and Thea Spyer, then residents of New York, were married in Ontorio Canada.

Under the laws of the State of New York their Ontario marriage is a legally valid marriage.

Thea died in 2009 and left her entire estate to her wife, Edith, who sought to claim the estate tax exemption for surviving spouses.  Being denied due to DOMA's restriction of the definition of "spouse" for federal statutes, she paid $363,053 in estate taxes but challenged the constitutionality of his provision of DOMA.

While this suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of DOMA’s §3.

In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of §3 of DOMA.

The Federal District Court and the Court of Appeals ruled that this portion of DOMA was unconstitutional and ordered a refund.

Here are some highlights from the majority decision written by Justice Kennedy:

"In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419."

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C." (emphasis added)

"Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States Code to provide a federal definition of 'marriage' and 'spouse.'"

"The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004)." (emphasis added)

"In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree."

"For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it,became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight."

"State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975).

"Marriage laws vary in some respects from State to State... But these rules are in every event consistent within each State... Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next."

"The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment."

"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee 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, 534–535 (1973)."  (emphasis added)

"The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity 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."

"DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal."

"DOMA also brings financial harm to children of same sex couples."

"What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

What does it all mean?

First, this ruling means a refund of $363,053 to Edith Windsor.

For both same-sex marriages, and same-sex divorces, federal benefits between spouses are now available to same-sex married couples.  This includes over 1000 benefits as indicated by the Court, including filing joint tax returns and other tax benefits for spouses (such as the estate tax benefit at issue in this case).

What doesn't it mean?

The court did not rule on the constitutionality of same-sex marriage under the U.S. Constitution, and gave mixed signals as to how they might rule on that issue by trumpeting state's rights while at the same time walking right up to the edge of naming same-sex couples as a protected class without actually taking that leap.

Under section 2 of DOMA, left intact by this ruling, states can still refuse to recognize same-sex marriages from other states.

Fore more information about same-sex divorce in Massachusetts please visit SameSexMassDivorce.com


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