Edith Windsor, the 83-year-old woman at the centre of United States v Windsor, at the offices of the New York Civil Liberties Union. (Richard Drew / AP Photo)
Almost every American knows from news reports that the Supreme Court has agreed to hear appeals in cases about so-called “gay marriage”. The high profile of these cases is deserved. Once again lower federal courts have issued undemocratic judicial fiats that, if upheld, will nullify the enactments of democratically-elected legislators and overturn long-standing social institutions in this country.
What the media have not publicized is that more than regulation of marriage and child-rearing is at stake. The Supreme Court has asked the parties to brief questions that neither side raised concerning the legal ability of Congress to defend the constitutionality of laws enacted by the citizens’ representatives when the President is unwilling to do so. Citizens who are concerned about the rule of law in this country have every reason to pay close attention to how these questions are resolved by the Court.
This article will discuss the first of the two cases, which involves the federal Defense of Marriage Act (DOMA). A separate article will focus on the California case attacking Proposition 8 that the people of California adopted in 2008.
United States v Windsor
The DOMA case, United States v Windsor (Supreme Court case no. 12-307), was filed by a New York woman who was married in Canada to another New York woman in 2007. In 2009, MsWindsor’s spouse (under Canadian law) died in New York. Ms Windsor inherited the property and was named executor of the estate. She claimed a marital deduction from federal estate taxes, but the IRS denied the marital deduction under DOMA.
The relevant portion of DOMA reads, “‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’ (1 U.S.C. § 7) Thus, for federal tax purposes, DOMA directed the IRS to treat Ms Windsor as not married, so no marital deduction was available to her.
Ms Windsor, as executor of the estate, paid federal estate taxes in the amount of $353,063 and then sued for a refund on the basis that DOMA was unconstitutional. The lower courts agreed with her that DOMA violates the equal protection of the laws guaranteed by the US Constitution and ruled that she should receive the refund.
Department of Justice v DOMA
Ms Windsor’s case is one of several cases in which Attorney General Holder declined to defend the constitutionality of DOMA. (See this Mercatornet article on his first announcement about this policy.) The House of Representatives appointed a Bi-Partisan Legal Advisory Group (“BLAG”) to step into the breach. The BLAG engaged attorneys in this and in other cases to defend DOMA. The Department of Justice did not step out of the way, however; it switched sides, attacking the statute’s constitutionality, becoming a major foe of the enactment rather than its defender.
The district court issued a summary judgment in favor of Ms. Windsor on June 6, 2012, finding that there was no rational basis upon which DOMA could be sustained against the charge that it discriminated against gay people. Now, a rational basis is easy to find for most laws; that standard requires only that a law not be utterly bereft of reason. If any legitimate reason can be thought of to justify it, even reasons that were not discussed by the legislature at the time the law was adopted, a law will satisfy the rational basis test. It takes some judicial work to find that a law lacks a rational basis, and the steps that have to be followed to reach such a conclusion are somewhat tedious to review. Rather than make readers’ eyes glaze over, I will invite interested readers to peruse a copy of the district judge’s opinion here.
On appeal, the US Court of Appeals for the Second Circuit upheld the district court, but on a somewhat different ground than the district court used. The appellate court ruled that a stricter standard of review should be applied, called the “intermediate standard”. Such a standard is triggered only when the group that is allegedly discriminated against is found to be a group whose members are easily identified and have been disfavored by society and law. In legal jargon, this is a “suspect class” or “quasi-suspect class.” If a statute treats such a class worse than other people, there is a greater suspicion that the statute was motivated by racism or similar illegitimate grounds, and so greater justification for the disparate treatment is required. Some groups who were not singled out by society as consistently or as intensely as blacks, such as women, have been termed “quasi-suspect classes”. Whether gays form a quasi-suspect class for equal protection purposes is hotly disputed in the cases.
When a court finds the existence of a quasi-suspect class, then the statute will be deemed unconstitutional unless the court finds that legislature identified an important, legitimate governmental objective for the statute and there is a clear connection between the goal and the means chosen to achieve it. Fewer laws pass muster under the intermediate standard than under the rational basis standard. Most of the Second Circuit’s opinion focuses on how gays constitute such a class and how DOMA fails to advance an important and legitimate governmental objective. Interested readers may examine the majority’s reasoning, along with the dissent’s criticisms, at this Internet site.
The Supreme Court raises the stakes
When the Supreme Court agreed to hear the case early in December, it granted the Attorney General’s petition, in which the only question presented was, “Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.” However, the Court ordered the parties to brief two more questions of its own: “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” (United States v. Windsor, Order, case no. 12-307 12/7/12)
These two questions are troubling. If the Court answers the first question by ruling that it does not have jurisdiction to decide the case at all, then the second question it raised does not matter, for no one would be able to defend DOMA in the US Supreme Court—or, for that matter, any other law that a private person challenges and the Administration then in office refuses to defend. The second question is almost as bad in its possible implications: If the Attorney General refuses to defend the constitutionality of a federal statute, or goes further and turns against it as in the present case, then a negative answer to the question would mean that Congress cannot defend its handiwork. Either answer could hand to the Executive the power to throttle a law that it did not like, so that there could be no review in the courts of the Executive’s position. It also would seem to impair the judicial power as well, depriving the Court of the ability to determine questions that are otherwise within the Court’s legitimate purview.
It is surprising in another way that the Court is raising such questions. They would seem to have been answered in previous cases. In the case, Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), it has been reported that the first Bush Administration would not defend the constitutionality of a law that required a certain percentage of FCC licenses to be set aside to minority applicants and that the Department of Justice appeared as a friend of the court and argued against its constitutionality. (M. Robbins, John Roberts and the SG’s Refusal to Defend Federal Statutes in Metro Broadcasting v. FCC, September 8, 2005, http://balkin.blogspot.com/2005/09/john-roberts-and-sgs-refusal-to-defend.html). The FCC sent its own lawyers to the Supreme Court rather than depending on the Department of Justice, which is quite unusual in cases involving federal agencies. The FCC won.
More to the point is INS v. Chadra, in which the Administration sided with a potential deportee against a Congressional statute that created a Congressional veto over INS decisions in particular deportation cases. In the course of its decision, the Court stated: “We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” INS v. Chadra, 462 U.S. 919, 940 (1983).
Affirmative answers would augment executive power
As a lawyer, I can perceive distinctions that could be argued between these cases and the ones now before the Court, and I can also see counter-arguments that I would consider more compelling. This article need not be lengthened by exploring them here. What is worrisome is that the Court has raised the stakes of the ‘gay marriage’ cases by unilaterally injecting these complications when they do not appear to have been required.
A President who cares far less about the rule of law than about imposing upon the country his own conceptions of good policy, an attitude that the actions of the incumbent clearly reflect, would welcome an affirmative answer to either of the Supreme Court’s questions. An affirmative answer would constitute a very desirable augmentation of his power. Citizens and legislators should pay close attention to what is argued and decided about these questions in the “gay marriage” cases.
James S. Cole is a graduate of Harvard Law School who practices law in St. Louis, Missouri.