United States v. Windsor Was a Moral Victory, but Was It a Legal Victory?

It is difficult to overstate the historical significance of United States v. Windsor, 570 US _ (2013), more popularly known as the decision of the US Supreme Court that struck down a key provision of the federal Defense of Marriage Act (DOMA). The decision, delivered by Justice Kennedy on 26 June 2013, instantly unlocked federal benefits that had previously been denied to legally married same-sex couples in thirteen states. Until this decision, same-sex couples married pursuant to state laws were, nevertheless, excluded from spousal benefits in well over one thousand federal statutes.

I. Background

The litigant in this case was Edith Windsor. She and Thea Spyer met in New York City in 1963, were registered as domestic partners in 1993, and were married in Toronto in 2007 (a marriage deemed valid by the State of New York). When Spyer died in February 2009, she left her entire estate to Windsor. However, because DOMA denied federal recognition to same-sex spouses, Windsor was unable to claim the marital exemption from the federal estate tax, which exempts “any interest in property which passes or has passed from the decedent to his surviving spouse … ” (26 USC § 2056(a)). As a result, Windsor was forced to pay US$363,053 in estate taxes not owed by similarly situated heterosexual surviving spouses.

On 9 November 2010, Windsor brought suit for a refund in the US District Court for the Southern District of New York, contending that DOMA violated the Fifth Amendment equal protection guarantee. Interestingly, on 23 February 2011, US Attorney General Eric Holder announced that the Obama Administration agreed with the plaintiff and that the Department of Justice would not defend the constitutionality of DOMA. Instead, Congress chose to defend the law through the Bipartisan Legal Advisory Group, a standing body of the US House of Representatives. On 6 June 2012, the District Court ruled that DOMA violated the equal protection clause as it could not survive even the lowest level of judicial scrutiny (i.e., rational basis review). The Second Circuit Court of Appeals upheld this ruling, stating that because “[i]t is easy to conclude that homosexuals have suffered a history of discrimination” they are part of a quasi-suspect class and, therefore, any law restricting their rights must be subject to intermediate scrutiny.

II. The Equal Protection Doctrine

What the District Court and the Second Circuit Court of Appeals did here merits a moment of reflection. In subjecting DOMA to varying standards of review and classifying homosexual individuals as part of a suspect or quasi-suspect class, these courts were incorporating sexual orientation within the architecture of equal protection jurisprudence. The suspect-class doctrine has been used throughout the twentieth century to strike down various laws that discriminated on the basis of race and, eventually, gender.

In Korematsu v. United States, 323 US 214 (1944), Justice Hugo Black held that regulations that differentiate on the basis of race are immediately suspect, and courts must therefore subject them to a more stringent standard of scrutiny. This decision—which upheld the constitutionality of Japanese-American internment during the Second World War—gave rise to a binary system of judicial scrutiny and shifted the focus of civil rights litigation to the appropriate standard of review. The choice of strict scrutiny as the appropriate standard of review, triggered by race-based regulatory classification, has almost always meant a timely demise for the legislation in question. By contrast, the choice of rational basis as the standard of review, which (as the name implies) looks only at whether the legislation is rationally related to a legitimate government interest, has almost always resulted in the law being upheld. Eventually, an intermediate level of judicial scrutiny was introduced for legislation that discriminated on the basis of gender and other “quasi-suspect” indicators.

At a time when the judiciary was still haunted by the spectre of Lochner v. New York, the suspect-class doctrine was seen by civil rights litigants as a new avenue of advancement. The civil rights movement succeeded in striking down laws that sanctioned the segregation of schools (Brown v. Board of Education of Topeka, 347 US 483 (1954)), a prohibition on interracial marriage (Loving v. Virginia, 388 US 1 (1967)), and university admission rules discriminating on the basis of gender (Mississippi University for Women v. Hogan, 458 US 718 (1982); United States v. Virginia, 518 US 515 (1996)). It is therefore highly significant, and historically resonant, that the Second Circuit took the next logical step in the evolution of this doctrine by classifying sexual orientation as a quasi-suspect indicator meriting an intermediate level of scrutiny. It is also for this reason that I see Justice Kennedy’s decision as morally praiseworthy yet doctrinally flaky.

III. United States v. Windsor

Justice Kennedy has been the “swing” vote on the US Supreme Court since the retirement of Justice Sandra Day O’Connor, and, prior to this decision, he had already established himself as sympathetic to the gay rights movement. In Lawrence v. Texas, 539 US 558 (2003), Justice Kennedy sided with the four liberal members of the Court in striking down sodomy laws in Texas and thirteen other states, holding that these laws represented an unacceptable intrusion into private life. Although Justice Kennedy struck down these laws as violating the due process clause of the Fourteenth Amendment, he did not characterize the entitlement in question as “fundamental” when to do so had long been necessary for substantive due process. An apoplectic Justice Scalia fixated on this omission, writing that the majority was simply reaching its preferred result by playing fast and loose with the law. On the other side, litigants seeking to build on this civil rights victory were left to navigate an uncharted legal landscape with only a vague precedent to guide them.

Unfortunately, the majority opinion in United States v. Windsor has been, and will continue to be, subject to the same criticisms. Justice Kennedy begins with a discussion of DOMA through the lens of federalist principles, reaffirming that marriage has traditionally been the domain of the states and that this law unduly restricts their ability to modify this institution to reflect evolving social mores. New York, like every other state, was given the power to configure marital relations in a way that reflects the values and aims of that community, and by effectively gutting this authority through the denial of federal benefits, DOMA disrupts the balance of power between state and federal governments and frustrates the Framers’ intention that states be sites of democratic experimentation.

The opinion next turns to whether DOMA violates the equal protection and due process clauses of the Fifth Amendment. Here, Justice Kennedy relies on the proposition set out in Bolling v. Sharpe, 347 US 497 (1954) that the US Constitution’s equality guarantee “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” (at 535) justify the differential treatment of that group, and he points to the history of DOMA’s enactment by Congress. The House Report stipulated that a primary purpose of the Act, which was (rather hysterically) passed in response to a number of states legalizing gay marriage, was to (as the name implies) defend the institution of marriage in its heterosexual, Judeo-Christian form. The principal effect of the legislation, therefore, was to express moral disapproval and to impose an unequal marital regime on a historically marginalized group, thereby saddling members of this group with additional legal, financial, and social burdens. These outcomes, according to Justice Kennedy, are not valid state objectives—the implication being that the law fails even on rational basis review.

United States v. Windsor should be praised as a compassionate appeal to what is increasingly conventional wisdom among the American public—that same-sex couples are no different than heterosexual couples in their ability to foster committed relationships and to sustain loving families. In many ways, the latter argument is far more compelling than an arcane standard of review analysis. Nevertheless, a better decision would have implemented both approaches. Justice Kennedy engaged with several legal frameworks—federalism, due process, and equal protection—that could have justified his ultimate decision, but he did not fully argue any of them. From a strategic perspective, it is understandable why Kennedy would not have wanted to decide the case on federalist grounds—this would have effectively created a firewall around state marriage laws, many of which have already banned gay marriage through statute or constitutional amendment. Further, the vitriolic response to Roe v. Wade continues to cast a long shadow over substantive due process, and judges continue to be wary of privacy guarantees implicit in the US Constitution. Nevertheless, I see no principled reason for refusing to identify sexual orientation as a quasi-suspect classification. In coming just short of fully importing sexual orientation into the equal protection framework, the decision fails to provide a solid footing for future litigants (beyond the gay rights movement) to base their claims.