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Family Law

High Court: Ban On Benefits For Same-Sex Married Couples Unconstitutional

WASHINGTON, D.C. - (Mealey's) In a 5-to-4 vote, the U.S. Supreme Court on June 26 struck down as unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage as the legal union between one man and one woman as husband and wife for purposes of all federal statutes.  The decision means that same sex couples married in states that recognize same-sex marriage as legal cannot be denied federal benefits under federal laws in which marital or spousal status is addressed (United States v. Edith Windsor, executor of the estate of Thea Spyer, No. 12-307, U.S. Sup.). [ subscribers may access the Supreme Court briefs in this case and read the enhanced opinion.]


Benefit Denied 

In 2007, concerned about Thea Spyer's health, Spyer and Edith Windsor wed in Ontario, Canada.  The same-sex couple continued to reside in New York, where they had registered as domestic partners when the city gave that right to same-sex couples in 1993.  The State of New York recognizes 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 DOMA.  Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied.

Windsor brought a refund suit in the U.S. District Court for the Southern District of New York, contending that DOMA violated the principles of equal protection incorporated into the Fifth Amendment to the U.S. Constitution. 

While the suit was pending, the U.S. Department of Justice indicated that it 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. 

The District Court then ruled against the United States, finding Section 3 unconstitutional and ordering the U.S. Treasury Department to refund Windsor's tax with interest. 

The Second Circuit U.S. Court of Appeals affirmed the ruling.  The United States has not complied with the judgment. 

Unconstitutional Ban  

Justice Anthony M. Kennedy wrote the opinion for the majority in which Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan concurred. 

After finding that the federal government and BLAG had standing to bring the appeal, the majority went on to hold Section 3 unconstitutional. 

"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 majority said.

 "In acting first to recognize and then to allow same-sex marriages, New York was responding 'to the initiative of those who [sought] a voice in shaping the destiny of their own times,'" the majority said. 

"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," the majority said.  "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." 

Dissenting Voices 

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr.  and Clarence Thomas dissented, with Justices Roberts, Scalia and Alito writing separate dissenting opinions. 

The judges each stated that the court lacked jurisdiction to review the decisions of the courts below and that Congress acted constitutionally in passing DOMA. 

"Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress," Justice Scalia said.  

Windsor's injury was cured by judgment in her favor, and whatever injury the United States has suffered will not be redressed by the action that it has asked the court to take, he added.  Neither party sought to undue the judgment for Windsor, so the court should have dismissed the appeal for lack of jurisdiction, which is also what the Supreme Court should do, Justice Scalia said. 

Windsor asked the court to intervene in the debate about the nature of the institution of marriage and seeks a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference, Justice Alito said. 

"The Constitution, however, does not dictate that choice.  It leaves the choice to the people, acting through their elected representatives at both the federal and state levels," Justice Alito said, adding that he would find that Congress did not violate Windsor's constitutional rights by enacting Section 3 of DOMA. 

Solicitor General Donald B. Verrilli Jr. of the U.S. Department of Justice in Washington represented the government.  Roberta A. Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison in New York represented Windsor.  Paul D. Clement of Bancroft in Washington represented BLAG.

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