story by Patricia Hurtado and Bob Van Voris
The provision of a federal law defining marriage as being only between a man and a woman was voided by the U.S. Court of Appeals in New York.
A three-judge panel ruled today (Oct. 18) in a 2-1 decision that a key section of the Defense of Marriage Act unconstitutionally bars the U.S. government from recognizing same-sex unions and improperly discriminates against gay men and lesbians who marry in states that allow gay weddings.
The Defense of Marriage Act, or DOMA “was an unprecedented intrusion into an area of traditional state regulation,” the panel said in its ruling.
“This is a reason to look upon Section 3 of DOMA with a cold eye,” the judges said. “Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”
Today’s decision was the first by a federal appeals court to ruling that government discrimination against gay people “gets a more exacting level of judicial review, known as ‘heightened scrutiny,’” said the American Civil Liberties Union, which also represented the plaintiff in the case, Edith “Edie” Windsor.
Section 3 of the law, which the court overturned, says that in determining the meaning of any federal law or regulation, “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 ruling by the appeals court upholds a lower-court ruling in favor of Windsor, who sued the federal government over a $363,000 federal tax bill she received after the 2009 death of her spouse, Thea Spyer. Windsor, 83, argued the U.S. failed to recognize her marriage to Spyer.
The women were married in Canada, and the marriage was recognized in New York, where they lived. Spyer’s estate would have been exempt from the taxes if she had been married to a man.
U.S. District Judge Barbara Jones in New York, ruled in June in favor of Windsor, concluding that the Section 3 portion of the act violated the equal protection clause because there was no rational basis to support it.
Today’s ruling leaves intact some portions of DOMA, including a provision that states that don’t allow gay marriage don’t have to recognize same-sex unions in states that do.
After the Justice Department said it would no longer defend DOMA in court, the Bipartisan Legal Advisory Group of the U.S. House of Representatives challenged Jones’s ruling and argued the law should be upheld. Former Solicitor General Paul Clement, who argued on behalf of the group, urged the judges to overturn the lower-court ruling.
Clement said that at the time DOMA was enacted, no states permitted same-sex marriage. Congress’s intention was “to maintain this traditional definition that was in place in all 50 states,” he said.
Windsor’s lawyer, Roberta Kaplan, argued last month before the appeals court that Congress improperly substituted its own definition of marriage in DOMA, instead of respecting state decisions on marital status as it had done in the past, Kaplan argued. Kaplan said that Windsor will now seek a refund of the tax she was forced to pay.
“We are pleased that the federal circuit that represents three states that provide their gay and lesbian citizens with the right to marry affirmed the decision of the district court,” Kaplan said in a statement. “Given her age and health, we are eager for Ms. Windsor to get a refund of the unconstitutional tax she was forced to pay as soon as possible.”
Kaplan told the judges last month that DOMA is unconstitutional because Congress had no legitimate government interest that was rationally served by the law. She urged the judges to review the statute with a heightened level of scrutiny because it discriminates against a group that has suffered from bias.
In today’s ruling the appeals court concurred with Kaplan, saying that homosexuals are still “significantly encumbered” and not in a position to adequately protect themselves from “the discriminatory wishes of the majoritarian public.”
The appeals court also said the section had improperly attempted to “enforce a uniform definition of marriage.”
The majority of the appeals panel also said its analysis would “sidestep” the argument that “same-sex marriage is unknown to history and tradition.”
“Law (federal or state) is not concerned with holy matrimony,” the judges said. “Government deals with marriage as a civil status – however fundamental – and New York has elected to extend that status to same-sex couples.”
Windsor, who worked for International Business Machines Corp., and Spyer, a clinical psychologist, met in 1963 and became engaged in 1967, according to court filings.
The two married in Toronto in May 2007, Windsor said. Spyer left all of her property to Windsor after her death in 2009, including the apartment they shared.
Chester Straub, the third judge on the panel who disagreed with today’s ruling that DOMA is unconstitutional, said a 1971 U.S. Supreme Court dismissal of a challenge to a Minnesota law limiting marriage to opposite-sex couples decided the issue.
“Whether connections between marriage, procreation and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process,” Straub wrote in his dissent.
DOMA affects more than 1,000 federal laws that refer to marriage, according to the opinion by the appeals court in Boston. The law may affect more than 100,000 couples, the judges said.
In February, U.S. Attorney General Eric Holder told Congress that the Obama administration would no longer defend DOMA.
The five-member Bipartisan Legal Advisory Group of the U.S. House of Representatives consists of House Speaker John Boehner, a Republican, and the Republican and Democratic majority leaders and whips. The group’s two Democratic members, Nancy Pelosi and Steny Hoyer, didn’t support the appeal.