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CHALLENGING THE DEFENSE OF MARRIAGE ACT
In recent years, the United States has seen a shift in attitude toward gay and lesbian couples. Once a taboo, many more Americans are expressing their support for and acceptance of gay and lesbian rights. Support for equality and greater protection for gay and lesbians is becoming more and more of a popular trend in society. Gay and lesbian individuals are more widely accepted. Many celebrities and entertainers are open about their sexual orientation, and several prime-time television shows, such as “Modern Family” and “The New Normal,” have characters who are openly gay or lesbian. While this trend is increasing in popularity as the norm, the battle for gay and lesbian rights continues to be a challenge. Currently, there is no protection against discrimination against gay and lesbian individuals in the workplace. While some states have protection against violence against gay and lesbian individuals, in 2009 the federal government included violence against gay and lesbian individuals as a hate crime. The most recent change has been the repeal of the United States military “don’t ask, don’t tell” policy.
The most contested issue in recent years regarding against gay and lesbian rights is the fight for same-sex marriage. As many as thirteen states currently allow same-sex couples to wed. A few other states that do not permit same-sex couples to marry will recognize a same-sex marriage legal in another state or permit other marriage-like classifications, such as a civil union.
The federal government has left the decision regarding the laws and restrictions of marriage to each individual state. However, for federal law purposes, such as taxes and benefits funded by the federal government, the Defense of Marriage Act (the “Act” or “DOMA”) was enacted into law in 1996, signed by President Bill Clinton. The Act serves two main purposes: it allows states to ignore legal same-sex marriages from other states, in other words, states are not required to acknowledge same-sex marriages from other states; and it defines marriage. Section 3 of the Act defines marriage as the union between one man and one woman. While this definition has no bearing as to whom the states can allow to marry, its purpose is for conformity with other federal regulations. Although the terms “marriage” and “spouse” are used numerous times in various statutes, “marriage” or “spouse” was not defined. Such terms were assumed to mean traditional marriage and spouses. It wasn’t until 1993, in Baehr v. Miike, when the federal government felt the need to formally define “marriage.”
In Baehr v. Miike, despite meet all requirements for a marriage license, three same-sex couples were denied the license in the state of Hawaii on grounds that they were of the same sex. At the time, Hawaii did not have a law against same-sex marriage. The couples filed a lawsuit against the state for discrimination. Before the final court could reach a decision, Hawaii passed a law that prohibited gay and lesbian marriage. Since the couples’ argument primarily depended on the fact that there was no law prohibiting their marriage and they met all other requirements, the court dismissed the case because now they no longer met all of the state’s requirements for marriage. In light of this case and the realization that couples of the same sex may be allowed to marry, the federal government and many states amended its laws to define marriage as between people of the opposite sex.
The issue as to whether laws restricting marriage to opposite-sex couples are constitutional has been litigated in several states, but the issue has not reached the United States Supreme Court until recently. Currently, the US Supreme Court is considering several cases regarding this issue: four cases involving same-sex couples that were denied benefits, and one regarding California’s 2008 amendment banning gay and lesbian marriage more popularly known as Proposition 8. The primary case, however, seems to be Windsor v. United States.
In Windsor v. United States, Edie Windsor is suing the federal government for estate taxes she was forced pay after her spouse died, denying her the benefit of the marital deduction.
Edie Windsor and Thea Spyer, a lesbian couple, met in 1963. At the time, they were both residences of New York, New York, living together as a couple. In 1993, New York state law permitted gay and lesbian couples to register as domestic partners, which Windst and Spyer did. In 2007, the couple decided to go to Canada to marry; Canadian laws did not prevent same-sex couples to wed. They soon returned to New York to live as a married couple. In that same year, Spyer began to have health complications and later died in 2009. In her will, all her property passed to her spouse, Windsor.
Although legally married, federal law did not recognize Windsor and Spyer’s marriage. Because of this, Windsor did not qualify for the marital deduction and was required to pay the federal government $363,053 in estate taxes on Spyer’s estate. Upon a person’s death, all property owned or deemed as owned by the deceased is taxed by what is commonly called the “death tax.” As is with all tax laws, there are several deductions, exemptions, and qualifications that federal law permits to reduce or eliminate the amount of taxes owed on an estate. One such deduction is the marital deduction. The marital deduction for estate tax purposes allows spouses to transfer assets and property owned by one to the other tax-free. This deduction has no limit or restriction as to the amount or value of the property that is passed. For estate tax purposes, whether a couple is married at the time of one’s death depends on whether they were legally married under the laws of the state the deceased was living at the time of death. Each state governs the laws and regulations regarding marriage; however, the federal government has defined “marriage” as is traditionally recognized: as the union between one man and one woman. Although they would have been recognized as a married couple in New York, since Windsor and Spyer were not a traditional couple, the IRS refused to recognize them as married and did not extend the marital deduction to Spyer’s estate. As executor of Spyer’s estate, Windsor was forced to pay over $300,000 in estate taxes. The next year, in 2010, Windsor sued the United States declaring that the federal law defining marriage as between one man and one woman is unconstitutional and for a refund of the estate taxes paid.
In 2011, both parties moved for summary judgment, and in 2012, the United States District Court for the Southern District of New York granted summary judgment in favor of Windsor holding that the federal government’s definition of marriage was unconstitutional in violation of the Equal Protection Clause of the Fifth Amendment because there was no rational basis to support it. The Equal Protection Clause requires that all persons similarly situated be treated equally. To classify individuals into categories to apply certain laws, there must be a legitimate governmental objective for doing so. The district court found there was no rational basis to support the law limiting marriage to that between one man and one woman. The Bipartisan Legal Advisory Group (BLAG), the primary defendant in this case, appealed to the United States Court of Appeals for the Second Circuit. In October of 2012, the Court of Appeals affirmed the granting of summary judgment in favor of Windsor, applying a higher level of scrutiny to the federal definition of marriage. Again, appeal was taken to the United States Supreme Court on several constitutional grounds; the main question being whether the DOMA deprives legally married same-sex couples equal protection under federal laws.
The other cases also challenge the constitutionality of DOMA and involve similar issues where spouses were denied benefits by the federal government they would otherwise have been entitled to if married to someone of the opposite sex or the federal government’s right to even make such a law on an issue reserved for the states.
Oral arguments in these cases were heard on March 27, 2013. Defenders of the DOMA argued that the law creates uniformity within the federal government. By having its own definition, federal agencies do not have to ascertain who was considered as married according to each state’s laws. Because marriage is regulated by states and DOMA is for federal law purposes, defenders of DOMA argued such uniformity is necessary. Otherwise, the federal code would have to make regulations that provided for all types of situations. For example, some states permit same-sex marriages, while others only allow couples to register as a domestic partnership, and still others ban same-sex marriage but have same-sex couples living in the state legally married in another. With so many variables to take into consideration, the federal government and its agencies would be burdened with changing regulations to fit every state’s idea of marriage. Opponents to DOMA argue it gives the federal government too much power over the private lives of citizens and violates the equal protection of gay and lesbians. Many legally married gay and lesbian couples are denied the same benefits and rights as traditional married couples by the federal government. This includes the retirement benefits, social security, insurance benefits, federal employee spousal benefits, tax breaks and the right to file jointly, and in immigration.
There may be a chance that the Court may not decide on the law’s constitutionality at all. The Court may hold that it lacks jurisdiction to decide since marriage is an issue for states to consider individually. Another potential hollow victory would be if the Court decided that the federal government had no authority to pass DOMA and is interfering with the states’ right to regulate marriage. While a decision in favor of opponents to DOMA may repeal the Act, the question of whether a ban on same-sex marriage is constitutional may not be decided. A decision is expected sometime in June of 2013.
