In yet another blow to the Defense of Marriage Act (DOMA), a federal judge in the Southern District of New York has granted Edith (Edie) Schlain Windsor summary judgment in her claim that denying federal recognition to her Canadian marriage to the late Thea Spyer deprives her of the equal protection of the law guaranteed by the Fifth Amendment.
The June 6 ruling by US District Court Judge Barbara S. Jones came in connection with Windsor’s claim she is eligible for an unlimited marital deduction for the value of the estate she inherited from Spyer. The IRS required her to pay $363,053 in taxes on that inheritance.
Windsor sued in 2010, the year following her spouse’s death, claiming that homosexuals represent a “suspect” class under nondiscrimination law, meaning that laws distinguishing them from other classes must survive a searching level of judicial scrutiny by showing that they are narrowly tailored to meet a compelling or legitimate government interest.
Alternatively, she said that DOMA could not even meet the most permissive level of scrutiny by the court –– the rational basis test. Defenders of the law, her suit alleged, could not counter the claim that it served no rational purpose allowed under the Constitution.
Last June, Windsor moved for summary judgment.
In August, the Bipartisan Advisory Group of the US House of Representatives (BLAG) –– a group controlled by Republican Speaker John Boehner that began defending DOMA after the Justice Department said it could find no constitutional basis to continue doing so –– moved for dismissal, arguing that the rational basis test was the appropriate standard for review of the 1996 law and that there were ample grounds for it to survive that scrutiny.
BLAG also challenged Windsor’s standing in the case, noting that she must show that her injury was not caused by “the independent action of some third party.” BLAG claimed that at the time of Spyer’s death, two years before New York State enacted marriage equality, the couple’s marriage was not valid in their home state. Its motion noted the 2006 ruling by the New York Court of Appeals, the state’s highest bench, that same-sex couples had no constitutional claim to the right to marry.
Judge Jones swatted away that argument, noting that, beginning in 2008, every appellate court in the state to review the question concluded that legal same-sex marriages from other jurisdictions must be recognized here, whether or not gay and lesbian couples have the right to marry in New York. She also noted that all three statewide elected executive officials –– the governor, the attorney general, and the comptroller –– acknowledged the validity of that mandate.
Edie Windsor and Thea Spyer met in 1963 in New York City and soon established a committed relationship and a home together. In 1993, they registered as domestic partners in New York. In 2004, when activists gathered at the LGBT Community Center to organize a protest demanding that the City Clerk’s Office issue same-sex marriage licenses, Windsor and Spyer spoke to Gay City News about their reasons for participating. Three years later, when Spyer’s health deteriorated as the result of multiple sclerosis and a heart condition, the two decided to marry outside New York. In 2008, they legally wed in Canada.
In evaluating Windsor’s claim that DOMA should be subjected to a strict or at least intermediate level of scrutiny because homosexuals represent a suspect or quasi-suspect class –– terms applied to review of discrimination claims based, respectively, on class and gender –– Jones noted that there is no binding precedent on this question in the New York-based Second Circuit. She added, however, that “the court is not without guidance on the matter.”
Citing the Supreme Court, she wrote that “courts have been very reluctant, as they should be in our federal system,” to create new suspect classes. Then, quoting from the May 31 ruling by a unanimous First Circuit panel in Boston that affirmed a district court decision striking down DOMA, she wrote, “Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer,” the 1996 case that threw out Colorado’s Amendment 2, a measure that barred gays and lesbians from winning nondiscrimination protections from the state and its local governments.
Despite her decision not to embrace Windsor’s strict scrutiny argument, Jones was prepared to grant her motion for summary judgment under rational basis review. Quoting from the 2003 Supreme Court sodomy decision in Lawrence v. Texas and referring again to the May 31 First Circuit DOMA ruling, the judge noted Justice Sandra Day O’Connor’s Lawrence concurrence, which argued that laws that “exhibit… a desire to harm a politically unpopular group” merit “a more searching form of rational basis review.”
Without articulating a clear position on “whether a more ‘searching’ form of rational basis scrutiny is required,” Jones, quoting the Romer Colorado Amendment 2 ruling, said the court must “insist on knowing the relation between the classification adopted and the object to be attained… The court must determine whether government’s asserted interests are legitimate.”
Jones concluded they were not.
First, she rejected BLAG’s argument that DOMA reflected the federal government’s “caution” on the question of embracing the “novel redefinition” of marriage some states might make. Whether or not the goal of maintaining “the definition of marriage that was universally accepted in American law” is legitimate, Jones concluded, DOMA did nothing to advance that. At least six states have decided that traditional limitations on who can marry are not appropriate.
DOMA also has no relationship to the goal of steering heterosexual procreation into married households –– Jones finding that “its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best.”
The judge answered BLAG’s argument that DOMA ensures that federal government benefits are distributed consistently, rather than varying according to a state’s marriage laws, by noting that domestic relations are regulated by the states, and that DOMA’s “incursion skirts important principles of federalism and therefore cannot be legitimate.”
Finally, the argument that DOMA conserves scarce government resources by limiting eligibility for benefits is also not legitimate, in Jones’ view. Excluding any “arbitrarily chosen group” from benefits saves money, but in the absence of some other rational basis for making that distinction, “Congress’ interest in economy does not suffice,” she wrote.
Windsor was awarded the $353,053 she paid in taxes plus interest and costs allowable under the law.
Windsor is represented by Roberta Kaplan from Paul, Weiss, Rifkind, Wharton & Garrison LLP, James Esseks, the director of the American Civil Liberties Union’s Lesbian, Gay, Bisexual, and Transgender Project, and Melissa Goodman, senior litigation and policy counsel for LGBT rights at the New York Civil Liberties Union.
Jones was nominated to the federal bench by President Bill Clinton.
A statement from House Minority Leader Nancy Pelosi’s office noted that the Windsor case represents the fourth time this year BLAG has lost in court defending DOMA. In an interview with the Washington Blade, the San Francisco Democrat emphasized that if her party regains control of the House in November and she recaptures the speaker’s gavel, she would drop the defense of DOMA, which she said has cost the federal government more than $700,000 to date.