Judge Finds DOMA Discriminates Against Married Same-Sex Couples

The Defense of Marriage Act’s denial of equal benefits to same-sex couples violates the Equal Protection Clause of the Fifth Amendment, Southern District Judge Barbara Jones (See Profile) ruled yesterday.

Becoming the fourth Article 3 judge to find Section 3 of the Defense of Marriage Act (DOMA) violates the U.S. Constitution, Judge Jones granted summary judgment to Edith Windsor, who sued the government for failing to recognize her marriage to her partner Thea Spyer, after Spyer’s death in 2009. Windsor and Spyer were married in Canada in 2007.

Spyer left all of her property to Windsor, including the apartment they shared. Spyer’s estate normally would have passed to her spouse without any estate tax. But DOMA prevents recognition of same-sex marriages and Windsor was assessed more than $363,000 in federal estate taxes.

Windsor challenged §3 of the act, which defines the word “marriage” to mean only “a legal union between a man and a woman as husband and wife.”

After the Obama administration said in February 2011 it would no longer defend the Defense of Marriage Act, House Majority Leader John Boehner, R-Ohio, led the Republicans in authorizing the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) to intervene in the Windsor action and defend the law.

Late yesterday Jones awarded Windsor $353,053 plus interest and costs and denied the advisory group’s motion to dismiss in Windsor v. United States, 10-cv-8435.

Windsor argued that §3 is subject to strict constitutional scrutiny, or at least intermediate scrutiny, because homosexuals are a suspect class due to a history of discrimination, an immutable characteristic upon which the classification is drawn, a lack of political power and the lack of any connection between the characteristic and the ability of the class to perform or contribute to society.

The advisory group countered in a motion to dismiss that §3 was subject to the less exacting standard of rational basis review, and Congress had proffered adequate rationales for the law to survive that standard.

Paul Clement of Bancroft, representing the advisory group, argued in court papers that recent progress on gay rights was a good example of why homosexuality is not a suspect classification.

“Moreover, whatever the historical record of discrimination, the most striking factor is how quickly things are changing through the democratic process on issues ranging from same-sex marriage to ‘Don’t Ask, Don’t Tell’ and beyond,” Clement wrote.

Rational Basis Review

While Jones declined to categorize homosexuals as a suspect class, she said the case could nonetheless be decided in Windsor’s favor applying rational basis review.

Jones said the justifications Congress gave for its definition of marriage in the act did not add up.

Congress acted to protect the traditional institution of marriage, encourage responsible procreation and childrearing, promote heterosexuality and defend traditional morality.

It also said it was acting out of “caution” to maintain consistency in eligibility for federal benefits, promote the idea that marriage is related to childrearing and make sure that children are provided with parents of the opposite sex.

Read More: New York Law Journal