A Citizen's Guide to Indiana

Big news for marriage equality out of the Second Circuit Court of Appeals in the case of Windsor v. United States (pdf). Edith Windsor was married to another woman in Canada in 2007. They lived in New York state when, in 2009, Edith’s spouse died. The IRS said it was barred from allowing Edith to claim the spousal estate deduction (26 U.S.C. § 2056(A)) on account of section 3 of the Defense of Marriage Act (1 U.S.C. § 7) which mandates:

In determining the meaning of any Act of Congress, 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, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The upshot was that, if DOMA is legal, Edith has to pay $363,053 more in taxes than she would have if her spouse was a man.

The Second Circuit indicated that its analysis might be different if it were reviewing a state law – the states having perhaps more latitude in prescribing the bounds and privileges of marriage under state law. But, in this case it was construing a federal law, DOMA, and its impact on another federal law, the federal estate tax. Jumping, for a moment, to the end, the court summarized:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

The initial question was whether gays constitute a “quasi-suspect” class or not. If so, then somewhat heightened scrutiny is in order when considering equal protection claims. If not, then it’s only necessary that DOMA legislation have a “rational basis.” Rational basis analysis is respectful and lenient but not, the Second Circuit says, toothless. For example, a bare desire to harm a politically unpopular group doesn’t pass the test because the rational basis has to advance a legitimate governmental interest. (Emphasis in the opinion).

Whether DOMA has a rational basis was closely disputed by the parties. And there was some levity in the opinion concerning the moving target sometimes presented by rational basis analysis which can apparently be more demanding in the context of “historic patterns of disadvantage suffered by the group adversely affected by the statute.” Counsel defending DOMA called this “rational basis plus
or intermediate scrutiny minus.”

Ultimately, however, the Second Circuit dodged the “rational basis” question by concluding that heightened scrutiny is required. Such heightened scrutiny was required because, the Second Circuit concluded, gays constitute a “quasi-suspect” class. To determine whether a group is in the “quasi-suspect” category it is directed to consider whether: a) the class has historically been subjected to discrimination; b) the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,”; c) the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group; and d) the class is a minority or politically powerless.

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C)homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Some interesting notes – BLAG (the group of Representatives that intervened to defend the statute) argued that gays had not been discriminated against for historically long enough. To which the Court of Appeals said the 90 years BLAG acknowledges has been long enough. “Whether such discrimination existed in Babylon is neither here nor there.” With respect to category “B” the court notes, “The aversion homosexuals experience has nothing to do with aptitude or performance.” On the immutability question, the Court batted away BLAG’s argument about how orientation can change over time. (Shades of Marcus Bachmann). So can alienage or illegitimacy, the Court observed. But, in any event, when it comes to same sex people who have gotten married (the actual class in question for this case) “there is nothing amorphous, capricious, or tentative about their sexual orientation.” In terms of political power, the court compared recent political victories by gays as non-decisive to the issue and akin to those of women when earlier cases were decided. In addition, “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment. Judge Straub dissented, arguing that the gays are not a “quasi-suspect” class and that DOMA meets the rational basis test.