United States v. Windsor

PETITIONER:United States
RESPONDENT:Edith Windsor, in her capacity as the executor of the estate of Thea Clara Spyer, et al.
LOCATION: United States District Court for the Southern District of New York

DOCKET NO.: 12-307
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 570 US (2013)
GRANTED: Dec 07, 2012
ARGUED: Mar 27, 2013
DECIDED: Jun 26, 2013

Donald B. Verrilli, Jr. – Solicitor General, Department of Justice, for the respondent in support of affirmance — merits
Paul D. Clement – for the respondent Bipartisan Legal Advisory Group of the United States House of Representatives — jurisdiction & merits
Roberta A. Kaplan – for the respondent Windsor — merits
Sri Srinivasan – Deputy Solicitor General, Department of Justice, for the petitioner supporting affirmance — jurisdiction
Vicki C. Jackson – appointed by the Court as amicus curiae — jurisdiction

Facts of the case

The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.

Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Spyer left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed.

On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government’s position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.


Does the executive branch’s agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case?

Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case?

Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law?

Media for United States v. Windsor

Audio Transcription for Opinion Announcement – June 26, 2013 (Part 1) in United States v. Windsor
Audio Transcription for Oral Argument – March 27, 2013 in United States v. Windsor

Audio Transcription for Opinion Announcement – June 26, 2013 (Part 2) in United States v. Windsor

Antonin Scalia:

As you’ve heard I’ve filed one of the dissenting opinions.

There are two parts to the majority’s opinion.

The first explaining why this Court has jurisdiction to decide the question and the second, deciding it.

Both of them are in my view wrong and the error in both springs from the same diseased root, an exalted notion of the role of this Court in American society.

In finding jurisdiction to pronounce upon the constitutionality of DOMA, the majority invokes what it calls this Court’s “Primary role” in determining the constitution’s meaning.

The constitution assigns us no such primary role.

Indeed it does not assign us the role of determining the constitution’s meaning at all.

We perform that task accidentally as it were in the execution of what is our assigned task, namely just as the other two coequal branches perform the task of interpreting the constitution in the execution of their assigned roles.

Our assigned role, as Article III says, is to resolve disputes, cases and controversies between two parties.

Where resolution of the case depends on the constitutionality and hence the validity of a particular law, it becomes and only then does it become as Chief Justice Marshall wrote, surely the province of this Court to say what the law is.

The power of the Court is increased enormously and becomes indeed primary among the three branches when our ability to expound upon the Constitution is uncoupled from our duty to resolve live controversies.

To confirm that that is what has happened here, one need only read the concluding sentence of the brief for the government, for the party appealing from the judgment below.

That lessons reads, for the foregoing reasons, the judgment of the Court of Appeals should be affirmed, but of course that is precisely what the respondent, the supposedly opposing party wants us to do.

There is no dispute for us to resolve.

One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.

The majority claims that it is enough to enable our jurisdiction that “Adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the other side of the issue.

That is truly a revolution in our jurisprudence and one as I have said that aggrandizes this Court.

Having gotten jurisdiction wrong, the majority gets the merits wrong as well and for the same reason of self aggrandizement.

As I described at length in my dissent, it is difficult to pin down the precise technical legal basis for the majority’s conclusion of unconstitutionality, but whatever hook it is hung on, the majority opinion makes clear that what causes DOMA to be unconstitutional is the fact that it is motivated by “the bare desire to harm” couples in same-sex marriages.

The majority says the supporters of this act acted with malice, with “the purpose,” all of the following are quotes, “The purpose to disparage and to injury same-sex couples.

It says that the motivation for DOMA was to demean, to impose inequality, to impose a stigma, to deny people equal dignity, to brand gay people as unworthy and to humiliate their children.”

Bear in mind that the object of this terrible condemnation is not some benighted state legislature and governor, but are respected coordinate branches that Congress and the presidency of the United States.

Laying such a charge against them should require the most extraordinary evidence and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.

The majority’s opinion does the opposite, affirmatively concealing from the reader, never mentioning the arguments that exist in its justification.

I imagine that this is because it has harder to maintain the illusion of the act’s supporters as unhinged members of wild-eyed lynch mob when one first describes their views as they see them.

In my view, a perfectly valid justification for the statute is contained in its title, the Defensive Marriage Act.

Society has the right, it has always had the right to define and defend that institution and favoring man-woman marriage no more demeans and humiliates other sexual relationships than favoring our constitution demeans and humiliates the governmental systems of other countries.

But apart from that more fundamental point, there are other non-malevolent justifications that support this statute.

I will mention only two.

First, DOMA avoids difficult choice of law issues that will now arise absent a uniform federal definition of marriage.

Antonin Scalia:

Imagine a pair of women who marry in Albany and then moved to Alabama, which does not recognize as valid any marriage of parties of the same sex.

When the couple files their next federal tax return, maybe a joint one, which state’s law controls for federal law purposes, the state of celebration which recognizes the marriage or their state of domicile which does not?

Are these questions to be answered as a matter of federal common law or perhaps by borrowing a state’s choice of law rules?

If so, which state?

And what about states where the status of an out of state same-sex marriage is an unsettled question under local law?

DOMA avoided all this uncertainty specifying which marriages would be recognized for federal purposes.

Second, DOMA preserves the intended effects of prior legislation against then unforeseen changes in circumstance.

When Congress provided for example that a special estate tax exemption would exist for spouses, this exemption reached only opposite sex spouses.

Those being the only sort that were recognized in any state at the time of DOMA’s passage.

When it became clear that — when it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state level experimentation did not automatically alter the basic operation of federal law unless and until Congress made the further judgment to do so on its own.

Congress has hardly demonstrated itself unwilling to make such further revising judgments upon due deliberation consider the Don’t Ask, Don’t Tell Repeal Act of 2010.

But in the majority’s judgment, any resistance to its holding is beyond the pail of reasoned disagreement.

To question its invalidation of the statute is to act.

The majority is sure with the purpose to disparage, injure, degrade, demean and humiliate our fellow human beings, our fellow citizens who are homosexual.

It is one thing for a society to elect change.

It is another for a court of law to impose change by judging those who oppose it, hostis humani generis, enemies of the human race.

The penultimate sentence of the majority’s opinion is a naked declaration that, “This opinion and its holding are confined to those couples joined in same-sex marriages made lawful by the state.”

In other words, today’s opinion does not say anything about whether same-sex marriages must be made lawful.

It takes real cheek for today’s majority as it is going out the door to leave us with that comforting assurance when what has preceeded is a lengthy lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it.

By formally declaring anyone opposed to same-sex marriage as an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

Henceforth, those challenges will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the personhood and dignity of same-sex couples.

The result will be a judicial distortion of our society’s debate over marriage.

That debate is in no need of this Court’s clumsy help.

Few public controversies touch an institution so central to the lives of many and few inspire such attended passion by good people on all sides.

Few public controversies will ever demonstrate so vividly the beauty of what our framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight, a system of government that permits us to rule ourselves.

Since DOMA’s passage, citizens on both sides of the question have seen victories and they have seen defeats.

There have been plebiscites, legislation, persuasion and loud voices, in other words, democracy.

Victories in some states, for example, North Carolina for the traditional definition of marriage have been offset by victories in other states, for example, Maryland for same-sex marriage.

Even in a single state such as Maine, the question has come out differently on different occasions.

In the majority’s telling, however, this story is black and white, hate your neighbor or come along with us.

Antonin Scalia:

The truth is more complicated.

It is hard to admit that one’s political opponents are not monsters especially in a struggle like this one.

And the challenge in the end proves more than today’s Court can handle, too bad.

A reminder that disagreement over something so fundamental as marriage can still be settled democratically rather than by judicial fiat would have been a fit task for what an earlier times was called a judicial temperament.

We might have covered ourselves with honor today by promising all sides of this debate that it was theirs to settle and that we would respect their resolution.

We might have let the people decide, but that the majority will not do.

Some will rejoice in today’s decision and some will despair at it.

That is the nature of a controversy that matters so much to so many, but the Court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat.

We oath both of them better.

I dissent.