Scott Forsyth, The Daily Record Newswire
On Oct. 18, a panel of the Second Circuit Court of Appeals ruled the Defense of Marriage Act violated the Equal Protection Clause, Windsor v. United States, No. 12-2335-cv (2nd Cir. 2012). The media played up the victory for marriage equality but generally overlooked the Rochester connection to the case and what the court said about the standard of review.
First, a quick review of the facts of the case is in order. Edie Windsor and Thea Spyer cared for each other in a loving relationship that lasted 44 years. In 2007, they traveled to Toronto where they married. Thea died in 2009 and left all of her property, approximately $4.3 million, to Edith.
Normally the marital deduction shelters assets passing between spouses from the estate tax. However, DOMA limits federal benefits, like the marital deduction, to marriages between a man and a woman. Since Edith’s marriage to Thea did not qualify, Edith, as executor of Thea’s estate, owed $363,000 in federal estate tax.
Edith paid and then sued for a refund. She claimed DOMA unlawfully discriminated against lesbians and gay men. The ACLU represented her.
Edith and Thea married outside New York and before the Legislature in 2011 changed the law, permitting same-sex marriages to be performed in New York. Consequently, the government questioned Edith’s standing to challenge the constitutionality of DOMA.
To the government, New York law on the recognition of foreign marriages between same-sex couples is “unsettled,” because the New York Court of Appeals has not ruled on the subject. The government wanted the Windsor court to certify the question to the Court of Appeals for an answer.
The court declined to do so. Instead, it looked at the rulings of New York’s intermediate appellate courts. Three of our four appellate divisions have
held New York must recognize foreign same-sex marriages. Given this consistency, the court predicted the Court of Appeals would follow the appellate divisions. Edith had standing.
The oldest appellate division ruling comes from the Fourth Department, Martinez v. Cnty. of Monroe, 50 A.D.3d 189 (4th Dept. 2008).
Pat Martinez was an employee of Monroe County. The county refused to extend health benefits to her same-sex spouse. Pat sued, represented by the NYCLU. Jeffrey Wicks was the volunteer attorney.
Pat lost at trial but won on appeal. The victory set in motion a series of challenges that has now culminated in Windsor.
A harder question for the Windsor court was the proper standard of review to assess the constitutionality of the separate treatment of lesbians and gay men under DOMA. The government argued the standard should be traditional rational basis — does the treatment bear a rational relationship to a legitimate governmental objective?
The government proffered four justifications: the protection of the fisc, the uniform administration of federal law notwithstanding possible varying state law definitions of marriage, the protection of traditional notions of marriage, and the encouragement of “responsible” procreation.
One judge on the panel did agree with the government that rational basis was the proper test. He further agreed the justifications were legitimate.
The other two judges took a different tack. In a first they applied intermediate scrutiny to DOMA. Is the classification in question (here homosexuality) “substantially related to an important governmental interest?” The explanation must be “exceedingly persuasive.”
The courts developed intermediate scrutiny to protect certain “quasi-suspect classes,” such as women, aliens and illegitimates. Key factors include a history of discrimination, a defining characteristic that bears a relation to ability to perform, an “immutable” characteristic that defines the class as a group, and the lack of political power.
The Windsor court found homosexuals exhibited all four factors. The court cited the many laws that criminalized homosexual conduct over the years. Homosexuals do not suffer any mental or physical impairment that diminishes their ability to contribute to society.
While a homosexual may suppress his orientation, once he reveals it, the characteristic invites discrimination. Homosexuals are active politically, but they still lack the clout to thwart the discriminatory wishes of the majority. Witness the many state DOMAs.
Moving to the justifications, the court rejected them all. The only uniform rule about marriage, since the adoption of the Constitution, is that states regulate the area, to the exclusion of the federal government.
Fiscal prudence is important, but “excluding any arbitrarily chosen group of individuals from a government program (will) conserve resources.” DOMA does not preserve a traditional notion of marriage, because states still decide whether same-sex couples can marry.
Finally, DOMA does not encourage “responsible” procreation, because it does not provide any incremental reason for opposite-sex couples to procreate. The law only penalizes same-sex couples who choose to marry.
Three district courts and two circuit courts now have held DOMA to be unconstitutional. Yet the government persists in the fight. Last week it asked the Supreme Court to take up Windsor immediately. Stay tuned.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
