February 11, 2013 Articles

Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA

The U.S. Supreme Court seems ready to make a historic ruling.

By Caitlin Sandley and Stanford Moore – February 11, 2013

In New York City during 1963, Thea Spyer and Edie Windsor met and fell in love. After remaining in a committed relationship for 30 years, the couple registered as domestic partners in New York City; they later married in Canada during 2007. In February 2009, Spyer died and left her estate to Windsor. Had the couple been heterosexual, the IRS would have allowed an unlimited spousal marital-tax exception. The IRS, however, levied a $363,053 tax on Windsor because section three of the Defense of Marriage Act (DOMA) defines “marriage” only as a legal union between a man and a woman and a “spouse” as only a person of the opposite sex. 1 U.S.C. § 7. DOMA blocks homosexuals from receiving federal marriage benefits; accordingly, DOMA precluded the IRS from recognizing Windsor as a spouse. Windsor, praying for the same treatment as her peers, challenged DOMA in the U.S. District Court for the Southern District of New York. State law, however, determines whether persons are married at the time of death. Windsor had standing to challenge DOMA because New York law recognized Windsor's marriage at the time of Spyer’s death.

Prior to the district court’s ruling in Windsor's case, U.S. Attorney General Eric Holder announced to Congress that the Department of Justice would no longer defend section three of DOMA. Mr. Holder recommended that courts analyze classifications based on sexual orientation under intermediate scrutiny rather than under rational basis. Though the United States remained a defendant in Windsor, the Bipartisan Legal Advisory Group (BLAG) intervened as a defendant, which tax dollars continue to fund. At the urging of the speaker of the House, Representative John Boehner, the U.S. House of Representatives convened BLAG to defend DOMA after the Obama administration announced it would not defend DOMA.

New York District Court Applies Rational-Basis Review
In Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), Windsor argued that the court should apply strict (or at least intermediate) scrutiny. BLAG, however, argued that the court should not deviate from federal court precedent and should apply rational-basis review. The court granted Windsor’s motion for summary judgment after it analyzed DOMA, using rational-basis review. The court held that DOMA violates the Equal Protection Clause.

Second Circuit Court of Appeals Applies Intermediate Scrutiny
On appeal, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)cert. granted, No. 12-307 (Dec. 7, 2012), the Second Circuit reached the same result as the district court but through different analysis. The Second Circuit held that for DOMA to survive, it must survive intermediate scrutiny, finding sexual orientation to be a quasi-suspect class. Windsor represents a landmark shift in equal-protection analysis because it used intermediate scrutiny. The court made this leap after finding “doctrinal instability” with the lower court’s application of rational-basis scrutiny to a sexual-orientation classification. The circuit court found that sexual orientation was a quasi-suspect class after it relied on the Cleburne factors—history of discrimination, relation to ability, distinguishing characteristic, and political power. Cleburne v. Cleburne Living Centers, 473 U.S. 432, 438 (1985). Additionally, the court found analogies to classifications based on sex and illegitimacy—classifications that trigger heightened scrutiny.

After determining that heightened scrutiny was appropriate, the Second Circuit concluded that classifications based on sexual orientation were not “substantially related to an important government interest.” Windsor699 F.3d 169 at 188 (citing Clark v. Jeter, 486 U.S. 456, 461 (1988)). BLAG’s arguments failed. The court found that the goals of promoting a uniform definition of marriage, fiscal prudence, preservation of a traditional understanding of marriage, and responsible procreation are not substantially related to a DOMA’s blanket prohibition on the recognition of same-sex marriages.

Level of Scrutiny Varies among Other Circuits 
The Second Circuit traversed the majority by applying heightened scrutiny, but it was not a lone ranger. Rejecting arguments to apply heightened scrutiny, other courts have held that homosexuality is not a suspect or quasi-suspect classification. See Windsor, 699 F.3d at 209 (Straub, J. dissenting) (noting 11 other circuits have not applied intermediate scrutiny to classifications based on homosexuality). For example, in Massachusetts v. U.S. Dept. of Health, 682 F.3d 1, 9 (1st Cir. 2012), the court concluded that extending the application of intermediate scrutiny to classifications based on sexual orientation was not an option because of stare decisis. The mode of analysis chosen seems to hinge on the court’s finding as to whether homosexuality is immutable or not. Although the majority of courts that have reviewed DOMA have not applied a heightened level of scrutiny, each court has found that the sole purpose of the provisions was hostility towards homosexuality. See, e.g.Perry v. Brown, 671 F.3d 1052, 1064 (9th Cir. 2012)cert. granted, (applying rational-basis review, the court invalidated a California constitutional amendment that defined marriage in a prejudicial manner similar to DOMA).

Supreme Court Review
On December 7, 2012, the U.S. Supreme Court granted certiorari to Windsor. In addition to briefing the constitutionality of section three of DOMA, the parties have been asked to brief two additional issues: (1) Whether the government's victory in the circuit court deprives it of the right to request certiorari, thus depriving the Supreme Court of jurisdiction; (2) whether BLAG has Article III standing to defend DOMA.

The first issue should not cause the Court to reject jurisdiction because “[w]hen an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal.” INS v. Chadha, 462 U.S. 919, 931 (1983). The second issue should not cause any problems because even if the Court finds that BLAG does not have standing, the Court can still reach the merits of Windsor. A case and controversy remains between plaintiff Windsor and the U.S. government—Mrs. Windsor’s injury as a result of the government’s refusal to grant her the tax credit—even though the government is not actively defending DOMA.

The Supreme Court has not decided the question of what level of scrutiny is appropriate for classifications based on sexual orientation. Although the Court has had several opportunities to apply intermediate scrutiny to classifications based on sexual orientation, it has not done so. The Supreme Court’s decision on what level of scrutiny to apply likely depends on Justice Kennedy. We predict that the Roberts Court will use intermediate scrutiny to invalidate DOMA. Justice Kennedy's views on the issue are far from mysterious. For example, in Lawrence v. Texas, 539 U.S. 558 (2003), Justice Kennedy authored the majority opinion holding that a state cannot prohibit private, consensual sexual activity. After the parties abandoned their intermediate scrutiny argument in Romer v. Evans517 U.S. 620 (1996), Justice Kennedy wrote the majority opinion invalidating a Colorado statute that encouraged discrimination based on sexual orientation. The court found that “animosity toward the class of persons affected” and a “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 634. Justice Kennedy concluded, “[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. Id. at 627. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”Id. at 627.

Beyond Windsor: The Future of DOMA 
The impact of DOMA on same-sex couples is significant, and Windsor is certainly not the only challenge to the statute. Since Congress promulgated DOMA in 1996, the act has been challenged on different issues including its effects on bankruptcy, public-employee benefits, estate taxes, and immigration. A government agency has found “[a] collection of 1049 federal laws classified to the United States Code in which marital status is a factor.” Appellants from eight DOMA cases, among them Windsor, have petitioned the Supreme Court for certiorari. If these challenges to DOMA are successful, DOMA will no longer prevent homosexual couples from filing joint tax returns, claiming exemptions from estate taxes, receiving Social Security survivor benefits, and obtaining federal-employee benefits (e.g., health insurance and retirement).

This dramatic shift highlights the need for the Supreme Court to addresssection three of DOMA. Regardless of the level of scrutiny applied, DOMA will likely not survive because classification based on sexual orientation in furtherance of animosity has failed before under rational-basis review. Romer517 U.S. at 620.

DOMA includes other text, in addition to section three, that the courts have not yet dissected. For example, section two provides that the states are not required to recognize same-sex marriages performed in other states. States have the right to choose whether to acknowledge or deny same-sex marriages. The number of states approving gay marriage—through legislation, referendum, and court action—continues to increase steadily, with nine states and the District of Columbia currently recognizing gay marriage.

Windsor is a great victory for the LGBT community because “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535–36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533. With this year’s 45th anniversary of Loving v. Virginia’s invalidation of anti-miscegenation laws and national opinion on same-sex marriage continuously shifting in favor of marriage equality, the justices are surely considering their place in history. Though the Supreme Court has yet to apply heightened scrutiny to an LGBT-rights case, Windsor has paved the way. The Court seems poised and ready to do so.

Keywords: civil rights litigation, Windsor, DOMA, LGBT


Caitlin Sandley and Stanford Moore are 2Ls at Case Western Reserve University School of Law.


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