In 2007, after 40 years together, New York residents Edith Windsor and Thea Spyer were married in Canada. Two years later, Spyer died, leaving her estate to Windsor. But Windsor was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act prohibits federal recognition of same-sex marriages. On top of her grief, and the prospect of living her remaining years alone, the 83-year-old Windsor now faced a federal tax bill of $363,053 in inheritance taxes that married heterosexual couples do not have to pay. She brought an Equal Protection claim in the Second Circuit, which struck down the Act last week in Windsor v. United States. A cert petition is already pending in the Supreme Court.
In a flood of other cases, same-sex spouses have presented similar lawsuits involving everything from the denial of Medicaid benefits to burial beside a spouse in a veterans’ cemetery. The Defense of Marriage Act denies more than a thousand rights and benefits in federal law and excludes an estimated 100,000 married same-sex couples in the United States. The number is growing as more states recognize marriages between same-sex couples.
Eight federal courts have recently ruled that the Act is unconstitutional; none have upheld it. In the two circuits striking down the Act, the First and Second, the opinions were written by Republican-appointed judges. Second Circuit Chief Judge Dennis Jacobs, in particular, is well-regarded among judicial conservatives. The cases challenging the Act thus come to the Supreme Court with an undeniable momentum that spans the spectrum of judicial philosophies. That doesn’t mean that the Court will agree with the lower federal courts, but it does mean that these decisions will be taken seriously in way that a decision from, say, the Ninth Circuit alone might not be.
The two appellate courts offer the Supreme Court distinct routes to holding the Defense of Marriage Act unconstitutional.
The First Circuit, in Massachusetts v. U.S. Dep’t of HHS (2012), suggested the more novel but narrower path of the two. The court held the Act unconstitutional under the Equal Protection Clause because it trenches on the interests of a historically despised minority in a matter of traditional state regulation, the definition of marriage. This almost unprecedented federal regulation aimed solely at married gay couples, the court explained, justified somewhat greater scrutiny than ordinary rational-basis review. Applying that “rational-basis plus or intermediate scrutiny minus,” as Paul Clement memorably described it in oral argument in Windsor, the First Circuit held that the Act was not adequately tailored to serve the asserted federal interests in uniformity and “responsible procreation.” Under this ruling, the federal definition is unconstitutional but a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.
The Second Circuit’s opinion in Windsor trod a more analytically familiar but potentially more far-reaching path. The court held that discrimination based on sexual orientation itself warrants intermediate scrutiny. To reach that conclusion, it determined that gays and lesbians have suffered a long history of discrimination, that sexual orientation is unrelated to individual merit, that homosexuality is a “discernable characteristic [defining] a discrete minority,” and that gays lack the level of political power that would warrant leaving their legal protection entirely in the hands of legislative and electoral majorities. The dissent, written by a Clinton appointee, barely engaged this analysis except to say that heightened scrutiny for sexual-orientation classifications had been rejected by eleven other circuit courts.
The Second Circuit’s mode of analysis, examining what level of scrutiny should apply to classifications based on sexual orientation, is the more conventional of the two. Judge Jacobs makes a strong case for heightened scrutiny and does so in a more thorough and substantive way than the previous eleven circuit courts considering it. Still, the opinion swims against a strong current of precedent that may sweep it away in the Supreme Court.
If the Supreme Court does accept the Second Circuit’s heightened-scrutiny approach, moreover, it would be hard to see why state laws restricting marriage to one man and one woman could survive. Laws excluding gay couples from marriage would have to be substantially related to an important governmental interest, a test that would be difficult to satisfy given how loosely related the exclusion of gay couples from marriage is to promoting things like “responsible procreation” among heterosexual couples. That potentially sets up a head-on challenge to the laws of 44 states that do not recognize same-sex marriages. Indeed, one such challenge, to California’s Proposition 8 is already at the cert stage before the Court (although Perry raises the somewhat different question whether a state can withdraw recognition of same-sex marriages once it grants that recognition).
Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.