United States: Doma And The Constitution

June 27, 2013.  Yesterday was a landmark day in America.  The United States Supreme Court ruled that a statute passed by a large majority of both houses of Congress (by 5:1 margins) and approved as law by President Clinton on subjects related directly to the operation of the national government was unconstitutional because it encroached upon the rights of the individual states to regulate matters of family law.  It is a fascinating decision and it features some fascinating dissenting opinions that merit careful thought.

The case involved a homosexual or lesbian couple who married lawfully in Canada.  They lived and one of them died in New York state, a state that does give recognition to a marriage formed by two people of the same sex.  One of the pair died and left a substantial inheritance to her married partner.  As most of us know, the United States taxes the estates of those who die possessed of wealth of a certain size and that tax is substantial.  If you are married at the time of your death, you may leave an unlimited amount of wealth to your spouse without paying any estate tax.  If you leave it to someone not your spouse, the estate tax is imposed.

In 1996 Congress enacted and the executive branch signed the Defense of Marriage Act.  In substance it provided that all of the benefit's the federal government conferred upon married couples were not to be made available unless the couple consisted of a man and a woman.  When Thea Speyer died and left her estate to her spouse Edith Windsor the United States imposed $360,000 in estate taxes because, under DOMA, the government of the United States did not recognize their marriage even though Canada had sanctioned it and New York (their home state) had, by judicial decision and state executive order given recognition to these relationships.

Ms, Windsor paid the tax but sued for a refund claiming that DOMA deprived her of equal protection under the fifth amendment to the United States Constitution.  Put simply, Ms. Windsor contended that the government of the United States had no justifiable basis to discriminate between married persons of the same sex and married persons of opposite sex.  The trial court, which is to say the United States District Court in Manhattan agreed with Ms. Windsor and directed the Internal Revenue Service to refund the tax on the basis that the 1996 DOMA did discriminate based on sexual orientation without a sound basis to do so.  Even though the Obama administration announced that it actually agreed with the District Court, it filed an appeal nonetheless so that the case could be reviewed by the United States Circuit Court of Appeals.  The clear purpose was to secure appellate review of the case even though the government agreed with the taxpayer.  On October 18, 2012 a three judge panel of the Second Circuit Court of Appeals held that persons of the same sex who were married under state law were a "quasi suspect" class for whom heightened scrutiny would be employed in evaluating any statute that treated them differently than others.  This was the first cases in which a United States appellate court had defined people of the same sex as quasi suspect and that statutes subjecting them to differing treatment were subject to intermediate scrutiny.

The United State Supreme Court decided to hear the case in December, 2012 although their order granting review directed the parties to brief whether this was a true "case or controversy" since the executive branch had taken the legal position on appeal that Ms. Windsor was wrongfully discriminated against and entitled to her tax refund.

A side note.  On June 6 of this year the Pew Research Center for the People and the Press reported that for the first time, a majority of Americans favor same sex marriage while 42% continue to oppose it.  The study noted how quickly attitudes toward this change in a fundamental institution of life had changed in the past decade.

Nonetheless, despite what the public may think, the Congress has never repealed or modified this law.  In its decision on June 26, the Supreme Court affirmed the Second Circuit decision and held that DOMA effectively created contradictory legal approaches to the same relationship within one state and thus diminished the predictability and therefore, the stability of relationships that the State of New York had, decided to endorse.  The decision was 5 justice voted to affirm and 4 dissented.

For this writer, what we see in the Windsor case is a sound public principal erected upon a very suspect constitutional base.  Were I King, (an aspiration which has thus far been thwarted) I would get government out of the business of deciding who could be married and who could not. Anyone of any sexual orientation could register to be married and thus voluntarily subject themselves to state laws governing marriage and divorce based upon their own decision.  Moreover, I don't think it can be lost on any thinking individual that while we pretend to celebrate marriage through legislation like DOMA, we have concurrently made divorce more easily available than ever before (at least during what we term the "Christian era").

But the dissenting opinions of Justices Roberts, Alito and Scalia note that there are profound procedural and substantive defects with the reasoning of the majority opinion.  The procedural one has to do with what Constitutional scholars call the real case or controversy doctrine.  The original of the principle dates to the administration of President Washington when the administration asked Chief Justice John Jay for advice concerning a federal law.  Jay wrote in response that the Supreme Court was not an advisory arm of government but an adjudicative one where only real cases involving adverse parties would be heard.  In this case, the United States took an appeal from a decision which it said it agreed with (DOMA is unconstitutional) in the hope that appellate courts would sustain their view of the law even though the view of the administration was directly opposite that enacted by the people through their representatives in Congress.  In 1911 a unanimous Supreme Court ruled that it would not hear a case involving Indian affairs where the court found the two parties before the court were not adverse but merely seeking an advisory opinion.  Muskrat v. United States 219 U.S. 346.

On the substantive side the Court did not find this to be a case commanding strict scrutiny as in race and sex based bias. There, the discrimination has been positively legislated against. Ironically, whether one sees it for better or worse, Congress legislated for this kind of discrimination, just as it has in the past approved laws discriminating in favor of veterans, first time home buyers or a panoply of other classes.  In this case the Court majority has said this is an encroachment of states rights to regulate family relations.

Certainly, there is a long history of the United States government abstaining from involvement in cases involving child custody, divorce, support and adoption. * But, here, the United States was not attempting to pre-empt state law or otherwise undermine its effect.  In the case of Ms. Speyer's estate, the government said only that because of the nature of their relationship, the Speyer-Windsor family was not eligible for a federal exemption from a federal estate tax.  If Ms. Speyer and Ms. Windsor had lived for fifty years together in a state of complete harmony but without the benefit of a Canadian marriage license, the tax would have been due and collectible.  If one wishes to argue that this form of discrimination is stupid, this author would wholeheartedly agree.  But can we really say that the federal government has wrongfully encroached upon a state's rights to regulate the family relationship of its citizens by adopting legislation that imposes a federal tax on a state's citizens.  Had DOMA held that New York could not recognize marriage by persons of the same sexual orientation, I join with a majority.  But in this case, while I "concur" with the result espoused by the majority, a constitutional subterfuge was employed that leaves me uneasy.

In the end, neither side really got what they wanted.  As the Wall Street Journal noted in its editorial this morning, what will become of the couple that marries in Hawaii while working for the United States government, only to be re-assigned by the government to a state that does not recognize marriages between same sex individuals?  Is it an act of discrimination for the government to make such an assignment because it will affect how the couple would be treated?

DOMA was an ill-conceived statute that merely pretended to "preserve marriage."  It has now bred a decision that pretends to celebrate federalism and the rights of states to experiment this experiment will be one marked by continued confusion.

*     The Congress has successfully entered this area before with statutes like the Parental Kidnap Prevention Act 28 U.S.C. 1728; The Child Support Recovery Act 18 U.SC. 228; Adam Walsh Child Protection and Safety Act.

**. Another curiosity. Ms. Speyer and Ms. Windsor married in 2007 and Ms. Speyer died in 2009.  Ms. Windsor asserted her spousal exemption rights not under a state statute (that was not passed until June, 2011) but what amounted to an executive order issued by then Gov. David Patterson in May, 2008 following a case decided by a New York Appeals Court.  See Martinez v. County of Monroe 850 NYS 2d 740 (2008).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.