The Defense of Marriage Act, 1. U.S.C.S. § 7, is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the U.S. Constitution.
The State of New York recognized the same-sex marriage of New York residents Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007. 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 § 7 of the federal Defense of Marriage Act (DOMA), which amended the Dictionary Act--a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations--to define “marriage” and “spouse” as excluding same-sex partners. Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied. Windsor brought this refund suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend § 7's constitutionality. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend § 7's constitutionality. The District Court permitted the intervention.
Is § 7 constitutional?
The U.S. Supreme Court held that § 7 was unconstitutional as a deprivation of the equal liberty of persons that was protected by the Fifth Amendment. The statute was applicable to a wide variety of over 1,000 federal statutes and regulations in addition to the tax exemption, and was directed to a class of persons the state sought to protect by recognizing same-sex marriages, in furtherance of no specific federal policy. The state's decision to give same-sex couples the right to marry conferred upon them a dignity and status of immense import, but the government used the state-defined class for the opposite and improper purpose of imposing restrictions and disabilities, and § 7 which sought to injure the very same-sex class the state sought to protect violated basic due process and equal protection principles by identifying and making unequal a subset of state-sanctioned marriages.