The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
FEATURE: LGBT WINDSOR AND HOLLINGSWORTH: SHIFTING TIDES IN THE BATTLE FOR MARR By: Jerrad Howard Of all of the Supreme Court decisions in recent years, few have drawn more public interest than United States v. Windsor and Hollingsworth v. Perry, and few Court decisions have impacted (if not legally, at least emotionally) the lesbian, gay, bisexual, transgender (LGBT) population in the same manner and scope as these cases. For many, however, the idea that the Supreme Court of the United States could reach two very different conclusions on what may initially appear to be the same legal issue has caused some to challenge those decisions. While both Windsor and Hollingsworth dealt with the issue of marriage equality, the cases called into question very different laws, and raised particularly distinct issues with regard to standing. It is because of the latter that the Supreme Court could reach the merits in Windsor, while refusing to do so in Hollingsworth. This article will distill the facts and opinions from both cases, and explain why these two cases are, to date, the most important developments in the battle for marriage equality. 4 UNITED STATES V. EDITH WINDSOR: THE FALL OF (SECTION 3 OF) DOMA United States v. Windsor1 addressed the constitutionality of certain provisions of the Defense of Marriage Act2, which was enacted in 1996 by the federal government to "define and protect the institution of marriage." Primarily at issue in Windsor was Section 3 of the Defense of Marriage Act, which provided that "[i]n determining the meaning of any Act of Congress. . . the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Section 2 of the Defense of Marriage Act, which was not directly impacted by the Court's decision, provides that "[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." B&B; • 1.14 Windsor arose out of the executive branch's application of the spousal exemption to the federal estate tax, which provides that a decedent's gross estate is reduced, dollar for dollar, by any property that passes, or previously passed, from the decedent to his or her surviving "spouse."3 Because "spouse" was defined under the Defense of Marriage Act to include only heterosexual couples for federal purposes, similarly-situated homosexual couples were denied this exemption. The impact was that homosexual decedents who were married under applicable state laws were subjected to a tax that did not apply to heterosexual couples. This distinction became a considerable monetary issue for Edith Windsor. In February of 2009, Edith lost her wife of two years and her partner of 44 years, Thea Spyer, after Thea succumbed to a long battle with multiple sclerosis. Thea left behind a fairly sizeable estate, surpassing the blanket federal estate tax exemption of $5 million and incurring an estate tax of $363,053. Despite having been married in 2007 in Canada, and despite the fact that Thea and Edith's marriage had been recognized by their state of residence (New York), Edith did not qualify as Thea's "spouse" for purposes of the spousal exemption from the federal estate tax because of Section 3 of the Defense of Marriage Act. Though the Obama Administration had disavowed the constitutionality of the Defense of Marriage Act4, the Internal Revenue Service continued to enforce that law and demanded that Edith pay the tax. Windsor paid the estate tax due, and filed a refund action in the District Court for the Southern District of New York. Windsor's primary contention was that she was entitled to the spousal exemption from the federal estate tax, and that the Defense of Marriage Act was unconstitutional because the statute violated the guarantee of equal protection under the Fifth Amendment. The Bipartisan Legal Advisory Group (BLAG), a group representing the interests of the House of Representatives, sought to intervene in the district court action to defend the constitutionality of the Defense of Marriage Act, and the motion to intervene was granted. The district court eventually concluded that Windsor was entitled to a refund. Both the United States and the BLAG appealed that ruling to the Second Circuit Court of Appeals, which affirmed the district court's opinion. Subsequently, both the United States and the BLAG sought and were granted certiorari by the Supreme Court of the United States. In a 5-4 decision, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment and, therefore, was unconstitutional. The Court noted that the Defense of Marriage Act's "demonstrated purpose [was] to ensure that if any State decide[d] to recognize same-sex marriage, those unions [would] be treated as second-class marriages for purposes of federal law." Accordingly, DOMA wrote "inequality into the entire United States Code" in more than one thousand statutes governing Social Security, housing, taxes, and veterans' benefits.5 The Court also stated that "DOMA's principal effect [was] to identify a subset of statesanctioned marriages and make them unequal"6 and "[t]he avowed purpose and practical effect of the law. . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."7 This disability imposed by the Defense of Marriage Act on a specific class of individuals, who are otherwise considered legally married in their state of residence, was found to violate the Fifth Amendment's Due Process Clause and, therefore, was unconstitutional. The majority also grounded its ruling in principles of federalism, stating that the Defense of Marriage Act was a departure from tradition because, "[b]y history and tradition[,] the definition and regulation of marriage. . . has been treated as being within the authority and realm of the separate States."8 Though the Court acknowledged that in certain limited circumstances, Congress had passed legislation impacting marital rights, DOMA had a far greater reach and, therefore, infringed on the "virtually exclusive province of the States" to define and regulate marriage.9