Article 3 of DOMA is Unconstitutional

Written by Alexander J. Segal on

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“Marriage” and “Spouse” Will Continue To Be Defined by State and not Federal Law.

This Wednesday, June 26, 2013, in a truly historic and dramatic 5-4 decision UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL, with Justice Anthony Kennedy not only voting with the majority but actually delivering the decision of the United States Supreme Court, the Court overturned the §3 of the federal Defense of Marriage Act (DOMA) as unconstitutional. The Court upheld the underlying decision by the U.S. District Court for the Southern District of New York that ordered the IRS to accord the plaintiff eligibility for the surviving spouse exception from estate tax under the United States Tax Code.

The Congress of the Unites States legislated DOMA and then President Clinton later signed it into the law in September of 1996. As it turned out, §3 of DOMA proved to be one of the most sweeping exercises of the Federal legislative power aimed at discriminating against a very distinct group of people — same sex couples who wanted their union to be publically acknowledged, celebrated and afforded same rights as the heterosexual unions — be recognized as marriage.

The way DOMA effectuated this sweeping discrimination was by amending the Dictionary Act-a law which mandates Federal Government and its numerous bureaucracies “to define “marriage” and “spouse”” for over 1,000 federal laws and the whole realm of federal regulations-in a way that excluded same-sex partners.”

As Huffington Post eloquently put it: “The federal government's refusal to recognize legal same-sex marriages has imposed a “stigma,” enshrined a “separate status” into law and “humiliates” a group of people — and that is unconstitutional, concluded Justice Anthony Kennedy, writing for the majority of Supreme Court justices on Wednesday in their historic decision striking down the 1996 Defense of Marriage Act.”

In Windsor, the Court recognized the underlying controversy and high emotions surrounding the definition of marriage. The Court noted that when DOMA was enacted in September of 1996, no state at the time had yet recognized marriage to include same sex partners. The Court recognized that although marriage and domestic relations had traditionally been viewed as falling almost exclusively into the realm of the legislative and regulatory powers of several states, Federal Government could, in some limited circumstances, regulate some aspects of the domestic relations. The Court cites Social Security regulations allowing the acknowledgement of the common law marriages as marriages for purposes of eligibility for federal benefits as an example of such proper interference regardless of how a particular state treats common law marriage.

The Court further acknowledged that marriage has been traditionally perceived as a union between one man and one woman by our cultures and traditions and that new laws of the 11 States so far, which expended definition of marriage in their respective jurisdictions to include same-sex partners presented rather new development in the area of domestic relations. The Court acknowledged that the issue was very emotional for all the parties involved on both sides of the argument. The Court concluded that it had the power to decide the case on the merits of the dispute, despite the Executive Branch's decision not to defend constitutionality of DOMA. The Court notied the agreement of the Executive Branch with Ms. Windsor, the plaintiff, that Article 3 of DOMA was indeed unconstitutional, but found that continious enforsement of the law the Esecutive Branch continued to undertake, preserved sufficient state of the Federal Government in the outcome the case to give the Court power and reason to rule on its merrits. The Court concluded that both constitutional and prudential requirements were satisfied in this case for the Court to have jurisdiction to hear and decide so. Justice Kennedy, writing for the Court, emphasizes that the Court's refusal to rule on the merrits of this case would leave the judicial branch without precedent in this area and would have very serious adverse effect on many underlying lower court decisions currently awaiting precedential guidance. The majority of the Court concluded that thus refusing to decide this case on the merits would have disadvantaged large number of people whose matters greatly depended on the outcome of this case.

On the merits of the case the Court concluded that both Equal Protection and Due Process guarantees of the Fifth Amendment of the United States Constitution indeed afforded same sex unions the same rights heterosexual unions enjoyed under the law and that for these reasons §3 of DOMA's definition of marriage as a union between one man and one woman was unconstitutional.

In further development, Janet Napolitano, The Secretary of the Department of Homeland Security (DHS) in a press release, welcomed the decision and promised that DHS would implement the decision including in this Nation's immigration system to recognize marriages between same-sex couples for purposes of the Immigration and Nationality Act (INA) and accorded by INA variety of Federal Immigration benefits to make them avalaible to same-sex spouses.

The fight, however, is not yet over. This decision came of the highly devided Court. Three different descending opinions were filed with the Chief Justice Roberts and Justices Scalia, Thomas and Alito expressing various points of dissent. Justice Scalia in his dissenting opinion in which Justices Clarence Thomas and Chief Justice John Roberts joined, called this essentially gay marriage endorsing decision a “jaw dropping assertion of judicial supremacy over the people's representatives in Congress and the executive.” Justice Scalia pronounced that “[t]oday's opinion aggrandizes the power of the court to pronounce the law,” predicting that such action of the Court would have diminished the “power of our people to govern themselves.” In the view of many as pointed out by the Newsmax in its recent article, “the court's action goes well beyond merely rejecting a federal definition of marriage.” Justice Scalia seems to agree: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers 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 — a debate that can seem in need of our clumsy 'help' only to a member of this institution.” Justice Scalia's opinion underlines the truth of the fact that the fight in this arena will continue for years to come and Windsor while very important and historical decision, is by no means is the final stop in this journey and will, indeed, have to withstand the challenge of time.