This column by ACRU Senior Legal Analyst Ken Klukowski was published March 26, 2013 on Breitbart.com.
The Supreme Court will hear two historic cases this week on marriage: Hollingsworth v. Perry and United States v. Windsor. And they could fundamentally transform American society.
This would be an easy case with clear adherence to two constitutional principles. Prop 8 and DOMA would both be upheld. Now we’ll find out how those two principles fare before the nine justices currently on the Supreme Court. Part I is about Hollingsworth, and Part II is about Windsor.
This is Part II, the Windsor case:
The Defense of Marriage Act (DOMA) became law in 1996, when Congress reacted after the Hawaii Supreme Court suggested it might redefine marriage in that state. DOMA received 342 votes out of 435 in the U.S. House, and 85 out of 100 in the U.S. Senate, and was then signed into law by President Bill Clinton, a Democrat. A majority of Democrats and Republicans in both the House and Senate approved the legislation, making it a rare triumph for bipartisanship.
There are two major provisions in DOMA. Section 2 says that if any state creates marriage other than one man and one woman, other states can individually decide whether to recognize those marriages. Section 3 says that for purposes of federal law and federal programs, it defines marriage as “a legal union between one man and one woman as husband and wife.”
A host of cases have been filed against Section 2 and Section 3 in lawsuits across the country. This one involves two lesbians who married in Canada in 2007. In 2009 one of the women, Thea Clara Spyer, died while they were living in New York, and the surviving partner had to pay federal taxes on her estate. The survivor, Edith Windsor, sued, saying that the federal government should recognize their Canadian marriage and give her the spousal exemption on this tax.
The federal district court in New York sided with Windsor, holding that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed in a 2-1 decision, striking down DOMA.
Out of more than ten cases offered to the Supreme Court, this one is unusual in that it involves a foreign same-sex marriage. New York did not create gay marriage until 2011, so in 2009 Edith Windsor would have been liable for the federal tax regardless of whether DOMA existed, or if instead the federal government used New York’s definition of marriage.
So there is maybe a 50-50 chance this case will be dismissed for lack of standing, since DOMA did not cause the injury (of paying taxes) over which Windsor is suing. The only way Windsor would not have to pay the tax would be if the federal government must recognize all marriages from all foreign countries.
But this creates a potential problem because of polygamy.
If marriage is the union of consenting adults, there is no legal principle to explain why it is only two. Over 50 nations on earth have legal polygamy, and many people are denied immigration into this country because we refuse to recognize their polygamous marriages, which are recognized by their religion (usually Islam) and perfectly legal in their country. Studies show there are 600,000 polygamists in America today, none of whose marriages are recognized.
If the federal government would have to recognize a foreign same-sex marriage because it is the union of consenting adults, there is no principled reason of law for refusing to recognize the union of three or more consenting adults.
Nonetheless, the Supreme Court voted to take the case. They will hear arguments on Windsor on Mar. 27.
In our constitutional system, each state defines marriage; the federal government does not determine who can get married. But that means states determine issues such as how old you must be to get married if you are not yet an adult, or how close of relatives (e.g., brothers and sisters, first cousins, second cousins) are considered too close to be married without committing incest. Until recently, all those laws required two persons, one man and one woman.
But other aspects of federal law involve marriage. There are over 1,000 provisions of federal law that involve marriage, and while most do not define marriage (and therefore rely upon DOMA), others separately define marriage and ignore any contrary definition from states.
For example, if you are married but separated from your spouse, federal law does not permit you to file a married joint tax return; you must file as an unmarried person. Or if you are married to a foreigner and that person is not currently in this country, you must file an unmarried person tax return. Or if you want to claim social security survivorship benefits, the Social Security Act defines marriage as one man and one woman.
DOMA fills in the gaps. Section 3 simply clarifies that this definition applies to every provision of federal law.
Under Supreme Court precedent, DOMA is constitutional because it is rationally related to advancing legitimate public interests. This is called “rational-basis review.” In this sense it’s an easier case than Hollingsworth, because there is no question that this law does not say who can and cannot get married, so there is no doubt that it does not burden any fundamental right. Thus, there is no reason for it to be subject to what is called “strict scrutiny,” which few laws survive.
Interestingly, even President Barack Obama and Attorney General Eric Holder admit that DOMA would survive rational-basis review. That is why in order to oppose DOMA they argued “intermediate scrutiny” applies, and DOMA does not survive that standard of review. (The precise legal definitions of these terms don’t matter; many lawyers don’t keep them straight.)
But the rational-basis standard applies here, because in order for intermediate scrutiny to apply, the group in question would (1) have to be defined by an “immutable trait,” meaning a characteristic unchangeably determined at birth, and (2) a group that cannot win through the democratic process.
Gays and lesbians have been winning huge political victories in the past couple years. But even if they hadn’t, briefs submitted in this case show that homosexual behavior is not immutable.
According to studies in court briefs, a significant percentage of people change their sexual orientation and behavior one or more times in their life. And if it were determined at birth, then identical twins would always have the same sexual orientation. Instead, briefs in this case show that when a man with a twin brother is gay, only 8% of the time is his brother also gay. Obviously 8% is less than 100%.
So rational-basis review is the proper standard here. The Supreme Court has held since Helvering v. Davis in 1937 that being a steward of taxpayer money gives Congress a legitimate interest in determining who can receive federal benefits. The only question was whether Congress (and President Clinton) was literally irrational in thinking that marital benefits should go to unions consisting of one man and one woman.
It’s also longstanding precedent, reaffirmed in U.S. v. Turley in 1957, that Congress defines almost all terms in federal law. Borrowing definitions from state law is a rare exception, not the rule. So there is nothing special about a federal definition for marriage, like there are federal definitions for countless other issues.
The Constitution’s system of federalism is about dual sovereignty. It means that the states are sovereign in their domain, and the federal government is sovereign in its domain. The feds can’t tell the states who can be married, and the states can’t tell the feds who to give federal marriage benefits to. Everyone who claims to adhere to the text and structure of the Constitution must respect both halves of that symmetry.
If the American people want to repeal DOMA, they must do it in Congress through the democratic process. If the Supreme Court decides United States v. Windsor on the basis of the Constitution, then it will uphold DOMA.