SUPREME COURT OF
THE UNITED STATES
UNITED STATES,
PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity
as executor of the ESTATE OF THEA CLARA SPYER,
et al.
June 26, 2013
Justice Kennedy delivered the opinion
of the Court.
Two women then resident in New York
were married in a lawful ceremony in Ontario, Canada, in
2007. Edith Windsor and Thea Spyer returned to their
home in New York City. When Spyer died in 2009, she left
her entire estate to Windsor. Windsor sought to claim
the estate tax exemption for surviving spouses. She was
barred from doing so, however, by a federal law, the
Defense of Marriage Act, which excludes a same-sex
partner from the definition of “spouse” as that term is
used in federal statutes. Windsor paid the taxes but
filed suit to challenge the constitutionality of this
provision. The United States District Court and the
Court of Appeals ruled that this portion of the statute
is unconstitutional and ordered the United States to pay
Windsor a refund. This Court granted certiorari and now
affirms the judgment in Windsor’s favor.
I
In 1996, as some States were
beginning to consider the concept of same-sex marriage,
and before any State had acted to permit it, Congress
enacted the Defense of Marriage Act (DOMA). DOMA
contains two operative sections: Section 2, which has
not been challenged here, allows States to refuse to
recognize same-sex marriages performed under the laws of
other States. Section 3 is at issue here. It amends the
Dictionary Act in Title 1, §7, of the United States
Code to provide a federal definition of “marriage” and
“spouse.” Section 3 of DOMA provides as follows: “In
determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United
States, the word ‘marriage’ means only a legal union
between one man and one woman as husband and wife, and
the word ‘spouse’ refers only to a person of the
opposite sex who is a husband or a wife.”
The definitional provision does not
by its terms forbid States from enacting laws permitting
same-sex marriages or civil unions or providing state
benefits to residents in that status. The enactment’s
comprehensive definition of marriage for purposes of all
federal statutes and other regulations or directives
covered by its terms, however, does control over 1,000
federal laws in which marital or spousal status is
addressed as a matter of federal law.
Edith Windsor and Thea Spyer met in
New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic
partners when New York City gave that right to same-sex
couples in 1993. Concerned about Spyer’s health, the
couple made the 2007 trip to Canada for their marriage,
but they continued to reside in New York City. The State
of New York deems their Ontario marriage to be a valid
one.
Spyer died in February 2009, and left
her entire estate to Windsor. Because DOMA denies
federal recognition to same-sex spouses, Windsor did not
qualify for the marital exemption from the federal
estate tax, which excludes from taxation “any interest
in property which passes or has passed from the decedent
to his surviving spouse.” Windsor paid $363,053 in
estate taxes and sought a refund. The Internal Revenue
Service denied the refund, concluding that, under DOMA,
Windsor was not a “surviving spouse.” Windsor commenced
this refund suit in the United States District Court for
the Southern District of New York. She contended that
DOMA violates the guarantee of equal protection, as
applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was
pending, the Attorney General of the United States
notified the Speaker of the House of Representatives
that the Department of Justice would no longer defend
the constitutionality of DOMA’s §3. Noting that
“the Department has previously defended DOMA against
. . . challenges involving legally married
same-sex couples,” the Attorney General informed
Congress that “the President has concluded that given a
number of factors, including a documented history of
discrimination, classifications based on sexual
orientation should be subject to a heightened standard
of scrutiny.”
Although “the President
. . . instructed the Department not to defend
the statute in Windsor,” he also decided “that Section 3
will continue to be enforced by the Executive Branch”
and that the United States had an “interest in providing
Congress a full and fair opportunity to participate in
the litigation of those cases.” The stated rationale for
this dual-track procedure (determination of
unconstitutionality coupled with ongoing enforcement)
was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.”
In response to the notice from the
Attorney General, the Bipartisan Legal Advisory Group
(BLAG) of the House of Representatives voted to
intervene in the litigation to defend the
constitutionality of §3 of DOMA. The Department of
Justice did not oppose limited intervention by BLAG....
On the merits of the tax refund suit,
the District Court ruled against the United States. It
held that §3 of DOMA is unconstitutional and
ordered the Treasury to refund the tax with interest.
Both the Justice Department and BLAG filed notices of
appeal, and the Solicitor General filed a petition for
certiorari before judgment. Before this Court acted on
the petition, the Court of Appeals for the Second
Circuit affirmed the District Court’s judgment. It
applied heightened scrutiny to classifications based on
sexual orientation, as both the Department and Windsor
had urged. The United States has not complied with the
judgment. Windsor has not received her refund, and the
Executive Branch continues to enforce §3 of DOMA.
In granting certiorari on the
question of the constitutionality of §3 of DOMA,
the Court requested argument on two additional
questions: whether the United States’ agreement with
Windsor’s legal position precludes further review and
whether BLAG has standing to appeal the case. All
parties agree that the Court has jurisdiction to decide
this case....
II
It is appropriate to begin by
addressing whether either the Government or BLAG, or
both of them, were entitled to appeal to the Court of
Appeals and later to seek certiorari and appear as
parties here....[The Court finds it has jurisdiction to
reach the merits.]
III
When at first Windsor and Spyer
longed to marry, neither New York nor any other State
granted them that right. After waiting some years, in
2007 they traveled to Ontario to be married there. It
seems fair to conclude that, until recent years, many
citizens had not even considered the possibility that
two persons of the same sex might aspire to occupy the
same status and dignity as that of a man and woman in
lawful marriage. For marriage between a man and a woman
no doubt had been thought of by most people as essential
to the very definition of that term and to its role and
function throughout the history of civilization. That
belief, for many who long have held it, became even more
urgent, more cherished when challenged. For others,
however, came the beginnings of a new perspective, a new
insight. Accordingly some States concluded that same-sex
marriage ought to be given recognition and validity in
the law for those same-sex couples who wish to define
themselves by their commitment to each other. The
limitation of lawful marriage to heterosexual couples,
which for centuries had been deemed both necessary and
fundamental, came to be seen in New York and certain
other States as an unjust exclusion.
Slowly at first and then in rapid
course, the laws of New York came to acknowledge the
urgency of this issue for same-sex couples who wanted to
affirm their commitment to one another before their
children, their family, their friends, and their
community. And so New York recognized same-sex marriages
performed elsewhere; and then it later amended its own
marriage laws to permit same-sex marriage. New York, in
common with, as of this writing, 11 other States and the
District of Columbia, decided that same-sex couples
should have the right to marry and so live with pride in
themselves and their union and in a status of equality
with all other married persons....
Against this background of lawful
same-sex marriage in some States, the design, purpose,
and effect of DOMA should be considered as the beginning
point in deciding whether it is valid under the
Constitution. By history and tradition the definition
and regulation of marriage, as will be discussed in more
detail, has been treated as being within the authority
and realm of the separate States....
Though these discrete examples
establish the constitutionality of limited federal laws
that regulate the meaning of marriage in order to
further federal policy, DOMA has a far greater reach;
for it enacts a directive applicable to over 1,000
federal statutes and the whole realm of federal
regulations.... In order to assess the validity of that
intervention it is necessary to discuss the extent of
the state power and authority over marriage as a matter
of history and tradition. State laws defining and
regulating marriage, of course, must respect the
constitutional rights of persons, see, e.g., Loving v.
Virginia (1967)
; but, subject to those guarantees, “regulation of
domestic relations” is “an area that has long been
regarded as a virtually exclusive province of the
States.”
Consistent with this allocation of
authority, the Federal Government, through our history,
has deferred to state-law policy decisions with respect
to domestic relations....
The significance of state
responsibilities for the definition and regulation of
marriage dates to the Nation’s beginning; for “when the
Constitution was adopted the common understanding was
that the domestic relations of husband and wife and
parent and child were matters reserved to the States.”
Marriage laws vary in some respects from State to State.
For example, the required minimum age is 16 in Vermont,
but only 13 in New Hampshire. Likewise the
permissible degree of consanguinity can vary (most
States permit first cousins to marry, but a handful—such
as Iowa and Washington—prohibit the practice). But these
rules are in every event consistent within each State.
Against this background 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. Despite these considerations, it is
unnecessary to decide whether this federal intrusion on
state power is a violation of the Constitution because
it disrupts the federal balance. The State’s power in
defining the marital relation is of central relevance in
this case quite apart from principles of federalism.
Here the State’s decision to give this class of persons
the right to marry conferred upon them a dignity and
status of immense import. When the State used its
historic and essential authority to define the marital
relation in this way, its role and its power in making
the decision enhanced the recognition, dignity, and
protection of the class in their own community. DOMA,
because of its reach and extent, departs from this
history and tradition of reliance on state law to define
marriage. Discriminations of an unusual character
especially suggest careful consideration to determine
whether they are obnoxious to the constitutional
provision.
The Federal Government uses this
state-defined class for the opposite purpose—to impose
restrictions and disabilities. That result requires this
Court now to address whether the resulting injury and
indignity is a deprivation of an essential part of the
liberty protected by the Fifth
Amendment. What the State of New York treats as
alike the federal law deems unlike by a law designed to
injure the same class the State seeks to protect.
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.” These actions were
without doubt a proper exercise of its sovereign
authority within our federal system, all in the way that
the Framers of the Constitution intended. The dynamics
of state government in the federal system are to allow
the formation of consensus respecting the way the
members of a discrete community treat each other in
their daily contact and constant interaction with each
other.
The States’ interest in defining and
regulating the marital relation, subject to
constitutional guarantees, stems from the understanding
that marriage is more than a routine classification for
purposes of certain statutory benefits. Private,
consensual sexual intimacy between two adult persons of
the same sex may not be punished by the State, and it
can form “but one element in a personal bond that is
more enduring.” Lawrence v. Texas (2003)
. By its recognition of the validity of same-sex
marriages performed in other jurisdictions and then by
authorizing same-sex unions and same-sex marriages, New
York sought to give further protection and dignity to
that bond. For same-sex couples who wished to be
married, the State acted to give their lawful conduct a
lawful status. This status is a far-reaching legal
acknowledgment of the intimate relationship between two
people, a relationship deemed by the State worthy of
dignity in the community equal with all other marriages.
It reflects both the community’s considered perspective
on the historical roots of the institution of marriage
and its evolving understanding of the meaning of
equality.
IV
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 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.
. In determining whether a
law is motivated by an improper animus or purpose,
discriminations of an unusual character especially
require careful consideration. DOMA cannot survive under
these principles. The responsibility of the States for
the regulation of domestic relations is an important
indicator of the substantial societal impact the State’s
classifications have in the daily lives and customs of
its people. DOMA’s unusual deviation from the usual
tradition of recognizing and accepting state definitions
of marriage here operates to deprive same-sex couples of
the benefits and responsibilities that come with the
federal recognition of their marriages. This is strong
evidence of a law having the purpose and effect of
disapproval of that class. The avowed purpose and
practical effect of the law here in question are to
impose a disadvantage, a separate status, and so a
stigma upon all who enter into same-sex marriages made
lawful by the unquestioned authority of the States.
The history of DOMA’s enactment and
its own text demonstrate that interference with the
equal dignity of same-sex marriages, a dignity conferred
by the States in the exercise of their sovereign power,
was more than an incidental effect of the federal
statute. It was its essence. The House Report announced
its conclusion that “it is both appropriate and
necessary for Congress to do what it can to defend the
institution of traditional heterosexual marriage.
. . . H. R. 3396 is appropriately
entitled the ‘Defense of Marriage Act.’ The effort to
redefine ‘marriage’ to extend to homosexual couples is a
truly radical proposal that would fundamentally alter
the institution of marriage.” The House concluded that
DOMA expresses “both moral disapproval of homosexuality,
and a moral conviction that heterosexuality better
comports with traditional (especially Judeo-Christian)
morality.” The stated purpose of the law was to promote
an “interest in protecting the traditional moral
teachings reflected in heterosexual-only marriage laws.”
Ibid. Were there any doubt of this far-reaching purpose,
the title of the Act confirms it: The Defense of
Marriage.
The arguments put forward by BLAG are
just as candid about the congressional purpose to
influence or interfere with state sovereign choices
about who may be married. As the title and dynamics of
the bill indicate, its purpose is to discourage
enactment of state same-sex marriage laws and to
restrict the freedom and choice of couples married under
those laws if they are enacted. The congressional goal
was “to put a thumb on the scales and influence a
state’s decision as to how to shape its own marriage
laws.” The Act’s demonstrated purpose is to ensure that
if any State decides to recognize same-sex marriages,
those unions will be treated as second-class marriages
for purposes of federal law. This raises a most serious
question under the Constitution’s Fifth
Amendment.
DOMA’s operation in practice confirms
this purpose. When New York adopted a law to permit
same-sex marriage, it sought to eliminate inequality;
but DOMA frustrates that objective through a system-wide
enactment with no identified connection to any
particular area of federal law. DOMA writes inequality
into the entire United States Code. The particular case
at hand concerns the estate tax, but DOMA is more than a
simple determination of what should or should not be
allowed as an estate tax refund. Among the over 1,000
statutes and numerous federal regulations that DOMA
controls are laws pertaining to Social Security,
housing, taxes, criminal sanctions, copyright, and
veterans’ benefits.
DOMA’s principal effect is to
identify a subset of state-sanctioned marriages and make
them unequal. The principal purpose is to impose
inequality, not for other reasons like governmental
efficiency. Responsibilities, as well as rights, enhance
the dignity and integrity of the person. And DOMA
contrives to deprive some couples married under the laws
of their State, but not other couples, of both rights
and responsibilities. By creating two contradictory
marriage regimes within the same State, DOMA forces
same-sex couples to live as married for the purpose of
state law but unmarried for the purpose of federal law,
thus diminishing the stability and predictability of
basic personal relations the State has found it proper
to acknowledge and protect. By this dynamic DOMA
undermines both the public and private significance of
state-sanctioned same-sex marriages; for it tells those
couples, and all the world, that their otherwise valid
marriages are unworthy of federal recognition. This
places same-sex couples in an unstable position of being
in a second-tier marriage. The differentiation demeans
the couple, whose moral and sexual choices the
Constitution protects, and whose relationship the State
has sought to dignify. And it humiliates tens of
thousands of children now being raised by same-sex
couples. The law in question makes it even more
difficult for the children to understand the integrity
and closeness of their own family and its concord with
other families in their community and in their daily
lives.
Under DOMA, same-sex married couples
have their lives burdened, by reason of government
decree, in visible and public ways. By its great reach,
DOMA touches many aspects of married and family life,
from the mundane to the profound. It prevents same-sex
married couples from obtaining government healthcare
benefits they would otherwise receive. It deprives them
of the Bankruptcy Code’s special protections for
domestic-support obligations. It forces them to follow a
complicated procedure to file their state and federal
taxes jointly.
For certain married couples, DOMA’s
unequal effects are even more serious. The federal penal
code makes it a crime to “assault, kidnap, or murder
. . . a member of the immediate family” of “a
United States official, a United States judge, or a
Federal law enforcement officer,” with the intent to
influence or retaliate against that official. Although a
“spouse” qualifies as a member of the officer’s
“immediate family,” DOMA makes this protection
inapplicable to same-sex spouses.
DOMA also brings financial harm to
children of same-sex couples. It raises the cost of
health care for families by taxing health benefits
provided by employers to their workers’ same-sex
spouses. And it denies or reduces benefits allowed to
families upon the loss of a spouse and parent, benefits
that are an integral part of family security....
The power the Constitution grants it
also restrains. And though Congress has great authority
to design laws to fit its own conception of sound
national policy, it cannot deny the liberty protected by
the Due Process Clause of the Fifth
Amendment.
What has been explained to this point
should more than suffice to establish that the principal
purpose and the necessary effect of this law are to
demean those persons who are in a lawful same-sex
marriage. This requires the Court to hold, as it now
does, that DOMA is unconstitutional as a deprivation of
the liberty of the person protected by the Fifth Amendment of the
Constitution.
The liberty protected by the Fifth Amendment’s Due Process
Clause contains within it the prohibition against
denying to any person the equal protection of the laws.
While the Fifth Amendment
itself withdraws from Government the power to degrade or
demean in the way this law does, the equal protection
guarantee of the Fourteenth
Amendment makes that Fifth
Amendment right all the more specific and all
the better understood and preserved.
The class to which DOMA directs its
restrictions and restraints are those persons who are
joined in same-sex marriages made lawful by the State.
DOMA singles out a class of persons deemed by a State
entitled to recognition and protection to enhance their
own liberty. It imposes a disability on the class by
refusing to acknowledge a status the State finds to be
dignified and proper. DOMA instructs all federal
officials, and indeed all persons with whom same-sex
couples interact, including their own children, that
their marriage is less worthy than the marriages of
others. The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its
marriage laws, sought to protect in personhood and
dignity. By seeking to displace this protection and
treating those persons as living in marriages less
respected than others, the federal statute is in
violation of the Fifth Amendment.
This opinion and its holding are confined to those
lawful marriages.
Chief Justice Roberts, dissenting.
I agree with Justice Scalia that this
Court lacks jurisdiction to review the decisions of the
courts below. On the merits of the constitutional
dispute the Court decides to decide, I also agree with
Justice Scalia that Congress acted constitutionally in
passing the Defense of Marriage Act (DOMA). Interests in
uniformity and stability amply justified Congress’s
decision to retain the definition of marriage that, at
that point, had been adopted by every State in our
Nation, and every nation in the world....
Justice Scalia, with whom Justice
Thomas joins, and with whom The Chief Justice joins as
to Part I, dissenting.
This case is about power in several
respects. It is about the power of our people to govern
themselves, and the power of this Court to pronounce the
law. Today’s opinion aggrandizes the latter, with the
predictable consequence of diminishing the former. We
have no power to decide this case. And even if we did,
we have no power under the Constitution to invalidate
this democratically adopted legislation. The Court’s
errors on both points spring forth from the same
diseased root: an exalted conception of the role of this
institution in America....
The Court is eager—hungry—to tell
everyone its view of the legal question at the heart of
this case. Standing in the way is an obstacle, a
technicality of little interest to anyone but the people
of We the People, who created it as a barrier against
judges’ intrusion into their lives. They gave judges, in
Article III, only the “judicial Power,” a power to
decide not abstract questions but real, concrete “Cases”
and “Controversies.” Yet the plaintiff and the
Government agree entirely on what should happen in this
lawsuit. They agree that the court below got it right;
and they agreed in the court below that the court below
that one got it right as well. What, then, are we doing
here?....
For the reasons above, I think that
this Court has, and the Court of Appeals had, no power
to decide this suit. We should vacate the decision below
and remand to the Court of Appeals for the Second
Circuit, with instructions to dismiss the appeal. Given
that the majority has volunteered its view of the
merits, however, I proceed to discuss that as well.
There are many remarkable things
about the majority’s merits holding. The first is how
rootless and shifting its justifications are. For
example, the opinion starts with seven full pages about
the traditional power of States to define domestic
relations—initially fooling many readers, I am sure,
into thinking that this is a federalism opinion. But we
are eventually told that “it is unnecessary to decide
whether this federal intrusion on state power is a
violation of the Constitution,” and that “[t]he State’s
power in defining the marital relation is of central
relevance in this case quite apart from principles of
federalism” because “the State’s decision to give this
class of persons the right to marry conferred upon them
a dignity and status of immense import.” But no one
questions the power of the States to define marriage
(with the concomitant conferral of dignity and status),
so what is the point of devoting seven pages to
describing how long and well established that power is?
Even after the opinion has formally disclaimed reliance
upon principles of federalism, mentions of “the usual
tradition of recognizing and accepting state definitions
of marriage” continue. What to make of this? The opinion
never explains. My guess is that the majority, while
reluctant to suggest that defining the meaning of
“marriage” in federal statutes is unsupported by any of
the Federal Government’s enumerated powers, nonetheless
needs some rhetorical basis to support its pretense that
today’s prohibition of laws excluding same-sex marriage
is confined to the Federal Government (leaving the
second, state-law shoe to be dropped later, maybe next
Term). But I am only guessing....
Few public controversies touch an
institution so central to the lives of so many, and few
inspire such attendant passion by good people on all
sides. Few public controversies will ever demonstrate so
vividly the beauty of what our Framers gave us, a gift
the Court pawns today to buy its stolen moment in the
spotlight: a system of government that permits us to
rule ourselves. Since DOMA’s passage, citizens on all
sides of the question have seen victories and they have
seen defeats. There have been plebiscites, legislation,
persuasion, and loud voices—in other words, democracy.
Victories in one place for some
are offset by victories in other
places for others...
In the majority’s telling, this story
is black-and-white: Hate your neighbor or come along
with us. The truth is more complicated. It is hard to
admit that one’s political opponents are not monsters,
especially in a struggle like this one, and the
challenge in the end proves more than today’s Court can
handle. Too bad. A reminder that disagreement over
something so fundamental as marriage can still be
politically legitimate would have been a fit task for
what in earlier times was called the judicial
temperament. We might have covered ourselves with honor
today, by promising all sides of this debate that it was
theirs to settle and that we would respect their
resolution. We might have let the People decide.
But that the majority will not do.
Some will rejoice in today’s decision, and some will
despair at it; that is the nature of a controversy that
matters so much to so many. But the Court has cheated
both sides, robbing the winners of an honest victory,
and the losers of the peace that comes from a fair
defeat. We owed both of them better. I dissent.
Exploring
Constitutional Law
|