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Same-Sex Marriage, DOMA, and the Supreme Court

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On Thursday, the Second Court of Appeals in New York found, in a 2-1 ruling, that the federal Defense of Marriage Act (DOMA) is unconstitutional. Windsor v. U.S., 12-2335-CV L, 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

The Court of Appeals not only agreed with the trial court that Defense of Marriage Act violated the Equal Protection Clause for want of rational basis, but went a step further than any court had before. It additionally found that “. . . homosexuals compose a class that is subject to heightened scrutiny,” and applied intermediate scrutiny to its review of the statute. Windsor at 10. The facts of the case center around plaintiff Edith Windsor, whose same-sex spouse (the couple married in Canada) died, leaving her estate to Windsor. Due to section 3 of DOMA, which limits the definitions of marriage and spouse to heterosexual couples, the Internal Revenue Service could not recognize Windsor as a spouse for purposes of federal estate tax law. Defense of Marriage Act, §3, 1 U.S.C. §7 (2006). As a consequence of this, Windsor could not take advantage of the spousal deduction, and thus was required to pay $363,053 in estate taxes. 

Many commenters have suggested that this is the term when the Supreme Court will be forced to take up the question of same-sex marriage. It is likely that this case may provide a demand for certainty, as now there is a split among federal circuits as to the law’s constitutionality.  In fact, the case is already before the Supreme Court, and had been before the Second Circuit’s ruling. This is permissible under sections 1254(1) and 2101(e) of title 28 of the United States Code, allowing petition for certiorari to the Supreme Court before a final judgment or decree is rendered in a case, providing greater flexibility to the Court.
Windsor is not the only case involving same-sex marriage awaiting action from the Supreme Court. In addition to Windsor, three other cases questioning the constitutionality of the Defense of Marriage Act are currently awaiting conference, where justices discuss the cases and vote on new petitions for certiorari.  The other cases, Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill, Department of Health and Human Services v. Massachusetts, and Office of Personnel Management v. Golinski are additionally pending before the court. Two additional cases, Hollingsworth v. Perry (appealing the finding that California’s Proposition 8, banning same-sex marriage in the state, is unconstitutional) and  Brewer v. Diaz (questioning whether Arizona law limiting state employee health care benefits to employee’s spouses and dependents, but not domestic partners in unconstitutional) are also awaiting conference.
You can follow what the Supreme Court will be deciding this term by viewing the Court’s argument calendars on its website. Arguments are already scheduled through December 5, so it is most unlikely the Court will hear any of these cases in advance of the presidential election. To find what cases are scheduled, or still awaiting conference, try using the helpful “Petitions We’re Watching” page at SCOTUS Blog, that lists the “hot topic” cases of term, and when they may be considered.  There is speculation that the Court may consolidate several of the cases involving the constitutionality of DOMA, giving the nation a definite answer about federal law and same-sex marriage.Whatever path the Court takes, the issue is ripe for decision.
To learn more about the Defense of Marriage Act and same-sex marriage in the United States, take a look at these resources available at the O’Quinn Law Library:

  •  Same-Sex Marriage and the Constitution / Evan Gerstmann. KF539.G47 2008

  •  Same Sex, Different States: When Same-Sex Marriages Cross State Lines / Andrew Koppelman. KF539.K67 2006

  • Same-Sex Unions Across the United States / Mark Strasser. KF539.S775 2011 

Suggested Subject Headings:
  • Same-sex marriage -- Law and legislation -- United States.
  • Same-sex marriage -- Law and legislation -- United States -- States.

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