Friday, June 15, 2012

New Ruling that DOMA Is Unconstitutional: Federal District Court in New York Takes Cues from the First Circuit

Linda McClain

On June 6, Judge Barbara S. Jones, a district court judge in the Southern District of New York (SDNY) ruled that Section 3 of the federal Defense of Marriage Act (DOMA) was unconstitutional as applied to 83-year old widow Edith Windsor. Worth noting is the way that this district court within the Second Circuit took its cues from the First Circuit’s recent ruling that Section 3 was unconstitutional as applied to same-sex couples lawfully married in Massachusetts (Massachusetts v. U.S. Dept’ of Health and Human Services, about which I commented a few weeks ago).

You may have read about the DOMA lawsuit brought by Edith Windsor, an 83 year old widow, who, because she married a woman, Thea Spyer, instead of a man, had to pay $363,053 in federal estate tax when Spyer died in 2009, leaving her estate to Windsor, her surviving spouse.  Even though Windsor and Spyer entered into a legal marriage in Canada in 2007, which was recognized as valid in New York, federal law (pursuant to Section 3) did not recognize their marriage as valid for purposes of federal tax law. Windsor is a very sympathetic plaintiff:  she  met Spyer in 1963. Their engagement lasted from 1967 until their 2007 marriage. When Spyer’s health began to deteriorate because of  multiple sclerosis, Windsor took early retirement from her impressive job to care for her. They lived together nearly 50 years. Windsor also took care of Spyer’s stepmother – Windsor’s stepmother-in-law – when her health began to fail.

In granting Windsor summary judgment on her claim that Section 3 of DOMA denies her equal protection of the laws, Judge Jones issued an opinion that resembles the First Circuit’s in several significant respects. First, it rejected the argument made by the Bipartisan Legal Advisory Group of the U.S. House of Representatives  (BLAG, the group defending the law since the Department of Justice has declined to do so) that the U.S. Supreme Court’s 1972 summary affirmance in Baker v. Nelson required it to dismiss Windsor’s case. That summary affirmance was of the Minnesota high court’s ruling that denying a same-sex couple the right to marry did not offend equal protection.  The Supreme Court’s summary dismissal of the challenge to Minnesota’s law was for want of a substantial federal question. The First Circuit stated that Baker did not resolve the DOMA case before it, although it did “limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” The SDNY court similarly concluded that the case before it – Windsor’s challenge to DOMA – did not present the same issue as in Baker, since DOMA – by contrast to the Minnesota statute – “does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses).”

Second, Judge Jones declined to subject DOMA to strict – or even intermediate – scrutiny on the theory that homosexuals should be treated as a suspect class for purposes of Equal Protection analysis. You may recall that when Eric Holder notified Congress in February 2011 that the DOJ would not defend DOMA in the Windsor lawsuit (and the other lawsuit now pending in federal district court tin Connecticut, Perdersen v. OPM), he explained that the Administration had concluded that “classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.” By contrast, Jones declined Windsor’s invitation to “decide, as a matter of first impression in the Second Circuit, whether homosexuals are a suspect class,” noting that “eleven Court of Appeals” have “applied the rational basis test to legislation that classifies on the basis of sexual orientation.”

Under what standard did Judge Jones conclude that Section 3 was unconstitutional? BLAG argued DOMA easily survived rational basis review. However, looking to the First Circuit’s recent DOMA ruling, Judge Jones explained the she would apply rational basis review as informed by the “pattern” evident in Romer v. Evans, City of Cleburne v. Cleburne Living Center, and U.S. Department of Agriculture v. Moreno, where the Court distinguishes between laws like economic or tax legislation and laws that exhibit “a desire to harm a politically unpopular group.” That “pattern,” Jones observes, was also evident to the First Circuit: such Supreme Court decisions have (here quoting the First Circuit) “intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.”   Morever, federalism matters: as the First Circuit further noted, “‘in areas where state regulation has traditionally governed, the Court may require that the federal government interest be shown with special clarity.’”

Third, Judge Jones, like the First Circuit, stresses the lack of fit between the government’s asserted interests for DOMA and its actual effects. The First Circuit concluded, for example, that there was a “lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits of society to heterosexual marriage.” Similarly, Judge Jones concluded that, whether or not the interests asserted by BLAG for DOMA, such as “caution” and “providing children with two parents of the opposite sex” are legitimate or not, the court could not detect a “logical relationship” between DOMA and those goals. For example: “It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation.”

Fourth, like the First Circuit, Judge Jones does not rest her conclusion about DOMA upon the premise that the desire to preserve traditional marriage – one concern expressed by lawmakers – is simply animus. To the contrary, Jones indicates her agreement with the First Circuit that such an interest “is not the same as ‘mere moral disapproval of an excluded group’” – here the First Circuit is quoting Justice O’Connor’s concurrence in Lawrence v. Texas – and “that this is singularly so in this case given the range of bipartisan support” for DOMA.   (This conclusion is strikingly different from one reached in another recent DOMA ruling, Dragovich v. U.S. Dept. of the Treasury, where the U.S. District Court for the Northern District Court of California stressed animus as a factor in enacting DOMA and a reason for finding it unconstitutional.)

 Finally, like the First Circuit, Judge Jones stresses federalism. BLAG argued that Congress sought, through DOMA, to have uniformity in distribution of federal benefits. However, that uniformity, Judge Jones countered,  was at the expense of “the states’ business of regulating domestic relations.” Quoting the First Circuit, Jones writes of the “virtue of federalism” – that some states may choose to preserve traditional marriage, while others may redefine it.

 The other DOMA challenge within the Second Circuit, Pedersen v. OPM, is awaiting decision by the District Court of Connecticut. In the meantime, the federal district court for the SDNY has followed the “jurisprudential cues’ of the U.S. Supreme Court and of the First Circuit in striking down DOMA, as applied – here – to a widow compelled to pay federal estate tax that a widow of an opposite-sex spouse would not have to pay. BLAG has filed a notice of appeal to the Second Circuit. The New York Attorney General, who filed a friend of the court brief in support of Windsor’s suit, described Judge Jones’s decision as a “major step forward in the fight for equality” and praised the court for – as its brief urged the court to do – examining the proposed justifications for DOMA “with special care.” In both the SDNY and the First Circuit, this “special care” has been cast as an “intensified” form of rational basis review. It remains to be seen what approach the District Court of Connecticut and – ultimately – the Second Circuit will take on the question of the standard of review. 

Older Posts
Newer Posts