25 March 2013

Law in Plain English: United States v. Windsor (same sex marriage preview)

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

 UPDATE: A summary of the Supreme Court's decision is here.

For a preview of the other same sex marriage case, Hollingsworth v. Perry, see here.


Windsor married her spouse in Canada, but New York (where she lived) did not recognize same sex marriage. After her spouse died, she filed suit, claiming that she was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act (DOMA) defines marriage as being between a man and a woman. Both the District Court and the Second Circuit decided in Windsor's favor, finding DOMA unconstitutional. Three months after Windsor's suit, the federal government also decided to stop enforcing DOMA, believing (as the courts in this case did) that DOMA was unconstitutional. The House of Representative's Bipartisan Legal Advisory Group (BLAG) moved to intervene on behalf of the United States. The results below, and this decision by the federal government, raises the questions before the Court: First, whether the federal government's decision not to defend DOMA takes away jurisdiction from the Supreme Court to hear the case (BLAG argues that because the Second Circuit's decision in favor of Windsor was in line with the government's new position not to defend DOMA, the government prevailed and cannot appeal; the government argues otherwise); second, whether BLAG has standing to defend DOMA (because, arguably, their interest in seeing the law enforced does not rise to the level of a specific injury); and third, whether DOMA itself is unconstitutional by violating the Fifth Amendment's guarantee of equal protection. It is important to note that the first two questions are threshold questions, meaning they must be decided in the affirmative for the Supreme Court to consider the constitutionality question. If the Court decides that the federal government couldn't appeal, or that BLAG couldn't intervene, then the Court could not decide on the constitutionality of DOMA and would have to save that question for another case (the other same sex marriage case involves California's Proposition 8 and doesn't implicate DOMA).
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