Last days for DOMA?

Scott Forsyth, The Daily Record Newswire

New York permits same-sex couples to marry and recognizes the marriages of same-sex couples performed in other jurisdictions. Not so the federal government, thanks to the Defense of Marriage Act adopted in 1996. The inconsistency leads to bizarre and harsh results.

Take the case of Edie Windsor and Thea Spyer, residents of New York City. They met in 1963 and shortly thereafter entered into a committed relationship. Thea developed multiple sclerosis in 1977 and Edie cared for her. In 2007 they journeyed to Toronto where they married.

Thea died in February 2009. She left all of her property to Edie, approximately $4.3 million.

If Edie and Thea were heterosexual and married, the property would have passed to Edie free of estate tax, due to the marital deduction. However, DOMA declares marriage, for federal purposes, to mean “only a legal union between one man and one woman as husband and wife.”

Edie did not qualify for the marital deduction under DOMA. Consequently, she, as the executor of Thea’s estate, had to pay $363,053 in federal estate tax. She did so, and in November 2010 sued for a refund. She alleged DOMA’s declaration of marriage violated the Equal Protection Clause.

Four months later the Department of Justice announced it agreed with Edie and would not enforce DOMA. It invited the House of Representatives to take up the defense of the law, which the House did.

In the summer of 2011 both sides moved for summary judgment. On June 6, 2012, the district court ruled in favor of Edie, Windsor v. United States, 833 F.S.2d 394 (SDNY 2012).

Seven days earlier the First Circuit Court of Appeals reached the same result. DOMA’s denial of health and insurance benefits to the same-sex spouse of a postal worker violated the Equal Protection Clause, Massachusetts v. U.S. Dep’t of Health & Human Services, 682 F.3d 1 (1st Cir. 2012).

The ACLU represented Edie. It urged the court to find gays and lesbians a “suspect class,” akin to race and illegitimacy. Then DOMA would be subject to strict scrutiny or, at least, intermediate scrutiny.

The court declined to do so, pointing out that eleven Courts of Appeals were of the same opinion. Instead, it nominally applied the rational basis test. “(L)egislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

The court did acknowledge some Supreme Court decisions implicitly and several lower court opinions explicitly have undertaken a more searching rational basis review “where minorities are subject to discrepant treatment” and the federal government treads on “areas where state regulation has governed,” Massachusetts v. HHS is one such opinion.

The court did not follow the First Circuit per se. Instead it took a hard look at the “link” between the classification drawn by DOMA between opposite sex couples and same sex couples and the several justifications for the separate treatment.

The House first argued Congress enacted DOMA to “maintain the definition of marriage that was universally accepted in American law” as of 1996. Not true, said the court. DOMA explicitly left to the states the definition.

The House next argued DOMA promoted “responsible procreation,” that is the raising of children in households with one mother and one father married to each other. The court saw no such connection; excluding one group (same-sex couples) from federal benefits did not motivate another group (opposite-sex couples) to marry and procreate.

Third, the House explained DOMA would distribute federal benefits uniformly, regardless of varying state definitions of marriage. The court saw a link between the classification and the goal but criticized the latter as “intrud(ing) upon the states’ business of regulating domestic relations.” The intrusion “skirts principles of federalism.”

Lastly, the House justified DOMA as a means of conserving government resources. The court pointed out excluding any arbitrarily chosen group from receiving benefits will save the government money. Lacking any other rational basis, economy does not suffice.

The House appealed the court’s decision. On Sept. 27, the Second Circuit will hear oral argument in the case.

The House asked the Supreme Court to review Massachusetts v. HHS. The ACLU countered by requesting the Supreme Court to review Windsor on an expedited basis.

There are good reasons for and against the Supreme Court wading into this legal and social thicket. At the moment DOMA stands on shaky legs.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or


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