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.
Interesting. From a secular policy standpoint, I have always viewed the gay marriage issue through libertarian-colored glasses. Good for them. From a personal financial standpoint, I believe that the legitimization of gay marriage is the best thing that could ever happen to the domestic relations bar. Huzzah!
Let gays pay for divorces just like everyone else, eh?
Equality is equality.
Just a slight addition to the personal history of Edith and Thea. They married in 2007, but they got engaged in 1967.
So the bigots take another one on the chin. Awesome.
Good show for all those on the side of equality for all.
As usual, Doug, an excellent job in explaining a decision in terms the average non-lawyer can understand. It will be interesting to see if the Supreme Court will agree to review this case and/or a decision striking down the same portion of DOMA by the First Circuit (Massachussets case) earlier this year. Somewhat different constitutional theories were advanced and addressed in the latter case.
So if the Supreme Court upheld one or both of these decisions, what would be the impact in Indiana? Clearly same sex marriages would not suddenly become legal, as the decisions don’t challange the right of a state to define marriage. Since there are no identifiable “liberal unelected activist judges” on the Indiana Supreme Court (particularly after three new Daniels appointees), and given Indiana’s strong very easy to meet “rational basis test), right wing claims that this is just over the horizon just don’t hold water. By law, Indiana still wouldn’t have to recognize the same-sex unions of other states.
However, from what I’ve read, if these decisions are upheld (or simply left stand in the affected states within these two circuits), married same sex couples from those states who moved to Indiana would bring with them their FEDERAL rights and benefits. Since Indiana bases its own income tax largely on federal provisions, it would prove interesting.
I’m not well versed in the interplay between federal law and state law when it comes to marriage generally, so I don’t have a good sense of what it means for Indiana. I would think that a married couple from another state who comes into Indiana would still receive federal benefits – such as federal estate tax exemptions – but would not receive state benefits tied to marriage.
But I don’t know that. The full faith & credit clause might have some application.
What Doug said is the conventional wisdom. Under a SCOTUS ruling that would “favor” same-sex marriage, what would likely happen is DOMA would be struck down, individual states could continue to prohibit same-sex marriage. But same-sex marriages performed in other states would have to still be fully recognized just as heterosexual marriages performed in other states are.
Why would they?
I mean, I’m all for same-sex marriage, but from a purely legal point of view I think you might be basing this upon the rather common misunderstanding of the “full faith and credit clause.”
States don’t have to recognize heterosexual marriages in another state as valid in their state if they don’t want to. If a judge in California says a given marriage is a valid marriage in California, then if the California-validity of a marriage should ever be relevant to a case in an Indiana court a judge would have to acknowledge that it does, indeed, constitute a valid marriage in California; but that’s not the same as recognizing that it’s a valid marriage in Indiana.
States recognize each others’ heterosexual marriages as valid marriages in their own state because each state has reciprocity laws to that effect, not because they’re Constitutionally required to. Same goes for drivers’ licenses, etc.
The legal argument for Constitutional pre-emption of a given state’s non-recognition of same-sex marriages as being valid within its own borders would have to be made under the Fourteenth Amendment, not FF&C.
I personally wonder what happens if Prop 8’s case hits SCOTUS’ dock. If the court strikes down prop 8, would that knock down all the marriage amendments in state constitutions?
That’s not a fair point. At all.
It is well-known among people who actually know what they’re talking about that same-sex marriage is, if not commonplace, certainly not unheard of or forbidden among a number of societies that do not enforce a gender binary.
Hell, it even happened right here in North America. Two-spirits among the indigenous peoples of western North America would often engage in different-gender but same-sex marriages.
You have references?
I have not run across same-sex marriage as a common concept except in recent years, although homosexuality seems to appear through recorded history.
I can’t claim comprehensive knowledge on the topic, so I’d be interested to know if this idea/practice has been around for any length of time.
Yes, actually. Sabine Lang, Men as Women,Women as Men: Changing Gender in Native American Cultures.
Read it as for a class in gender construction I took as part of my undergrad cultural anthro minor.
Thanks – for anyone interested, there is description/excerpt at:
http://www.utexas.edu/utpress/books/lanmen.html
I think there’s a little bit of confusion in the comments above about the impact of repealing or overturning the federal DOMA. That’s probably because the law has two parts. One says that a state doesn’t have to recognize the same sex marriages of another state. The other defines marriage as between only one man and one woman for all FEDERAL purposes. Only the second part is the subject of litigation.
Most legal scholars believe that the first part wasn’t needed anyway. It was passed because of a fear that the Full Faith and Credit (FFC) clause of the U.S. Constitution would force such cross-state recognition. However, illogical as it may seem, the federal courts have long upheld a “public policy exception”, and so despite the FFC, with or without the DOMA section, states still wouldn’t have to recognize the same sex marriages of other states.
Repeal/overturning of the other (federal definition of marriage) would have the effect I referred to earlier.
As to Matt’s wondering about what happens if SCOTUS should strike down California’s Proposittion 8: Most observers believe that because the facts are so unique to California, there would be no direct impact. However, as Steelydanfan seems to imply, such a decision might contain some principles saying that under the Equal Protection Clause of the 14th Amendment, distinctions based on sexual orientation must be given a higher amount of scrutiny than applied to most laws, setting the stage for challenging prohibitions against same sex marriage in many states.
The most ludicrous thing about the pro-hatred crowd is that they can’t even figure out how to word their hatred properly when they attempt to enshrine it in law. If marriage is supposed to be between “one man and woman” (as opposed to “one male and one female”) then one would expect that under such a law a trans-gender bio-male would be able to marry a cis-gender bio-male.
Which is fine with me, but I don’t think that’s what they want.
Maybe they do, and maybe they don’t, Steelydanfan. In general they think gender is a 100% thing from birth (despite what a lot of attending O.B.’s say), and any attempt to “change” it is a sinful mutilation of one’s body.