Defense of Marriage Act Takes Another Blow

This United States Supreme Court announced today that it will decide in late November whether to consider federal challenges to the Defense of Marriage Act (DOMA). The announcement comes on the heels of a decision earlier this month by a federal appellate court finding section 3 of DOMA to be unconstitutional. Notably, the appellate court’s opinion was authored by George H.W. Bush appointee and Federalist Society member, Dennis Jacobs. His opinion is a testament to the fact that this issue is less and less a partisan one, and increasingly viewed by both conservatives and liberals alike as arbitrary and irrational discrimination.

The case was brought by the surviving spouse of a  same-sex couple who were together for over 40 years. The widow, Edith Windsor, challenged section 3 of DOMA, which essentially prohibits the federal government from extending federal benefits granted to heterosexual couples to legally married same-sex couples. Even though Windsor and her spouse, Thea Spyer, were legally married in Canada, Windsor was forced to pay over $350,000 in estate taxes following Spyer’s death. Normally, married couples do not pay estate tax on transfers of wealth among spouses; however, since the married couple consisted of two women, rather than a man and woman, the estate tax exemption was inapplicable to them due to DOMA’s restrictions.

The Second Circuit Court ultimately held that DOMA violates the Constitution’s guarantee of equal protection. The case is signficant not only because it recognizes the injustice of DOMA or the “historic patterns of discrimination” faced by individuals due to sexual orientation. The case is important because of the method the court uses to evaulate the constitutionality of DOMA: it is the first federal court decision to apply a heightened equal protection standard to discrimination based on sexual orientation.

Why does this matter? Until now, courts have used rational basis review to determine whether a law that discriminates on the basis of sexual orientation is constitutional. Among other things, this standard places the burden of proof on the individual to show that a law violates the constitution, which is a very difficult task. The test used by the Second Circuit Court, known as intermediate scrutiny, essentially shifts the burden of proof to the government, forcing the government to justify its discriminatory laws. If this decision takes hold in other courts around the country, it will be much more difficult for states to justify laws that single out gays and lesbians for unequal treatment, including marriage laws. Of course, the million dollar question is will it influence other courts, particularly the United States Supreme Court which will have the final say on the issue, possibly as soon as next summer.

Putting aside DOMA for a second, this case is also noteworthy because it highlights the importance of the need to plan ahead, especially for LGBT couples. Because same-sex relationships are not recognized by federal or, in Texas, state laws, same-sex couples unfortunately have to go above and beyond to access basic legal protections automatically granted to married couples.

If you have questions or would like more information on anything discussed in this post, including marriage laws or estate tax planning, feel free to contact me.


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