There are three issues that were raised by the challenge to the Defense of Marriage Act (“DOMA”). One issue was whether or not Congress overstepped its authority by infringing on a matter that is traditionally left to the states. Historically, states have had authority to regulate marriage and issues relating to the family. However, Section 3 of DOMA defined marriage, albeit in the name of allowing states to determine their own definitions of marriage. Another issue was what level of scrutiny should be applied to government regulations that are based on a person’s sexual orientation. The final issue was whether or not DOMA impermissibly discriminated against a class of people in violation of the Fifth Amendment.
The entity defending DOMA, the Bipartisan Legal Advisory Group (“BLAG”) argued that the federal government is entitled to define marriage for purposes of federal law and federal programs. BLAG Br. at 4. It pointed to the federal government’s recognition of common-law marriages regardless of state law, see 42 U.S.C. § 1382c(d)(2), and the federal government’s definition of “spouse,” “husband,” and “wife” for social-security, see 42 U.S.C. § 416, among other things. It pointed out that if the federal government had not enacted its own definition, and followed the definitions of the states, then a homosexual couple in Massachusetts would be entitled to certain federal benefits, while a homosexual couple in Virginia would not be. BLAG Br. at 21. BLAG further emphasized that Section 3 of DOMA only applies to federal law, and explicitly allows states to define marriage themselves. BLAG Br. at 6.
Despite these arguments, Justice Kennedy’s comments suggested that he might rule against DOMA because it violated federalism. Justice Kennedy made statements such as, “[The House’s legal theory] is not consistent with the historic commitment of marriage, and questions of  the rights of children to the State[s],” and “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” If the case was decided based on the issue of state’s rights, the Supreme Court would not have to address the other two issues of what level of scrutiny to apply to DOMA, and whether or not DOMA violates equal protection.
Justice Kennedy may have been the only Justice for whom the state’s rights argument was determinative. It was widely predicted that Justices Breyer, Ginsburg, Sotomayor, and Kagen favor a ruling that goes to the issue of equal protection. It was also widely predicted that Chief Justice Roberts, along with Justices Scalia, Thomas, and Alito would vote in favor of DOMA’s constitutionality.
Level of Scrutiny
If the court did not determine the case on the state’s rights issue, it would have to determine whether or not DOMA was a constitutional regulation, or whether it violated equal protection. There are three levels of scrutiny that the court can apply when looking at a government regulation: (1) the rational basis test; (2) intermediate scrutiny; or (3) strict scrutiny. Under the rational basis test, a regulation is upheld if it is rationally related to a legitimate government purpose. This is the easiest test, and regulations usually pass this test. The rational basis test is applied when there is not a suspect class or fundamental right at issue. Under intermediate scrutiny, the government must show that the regulation is substantially related to an important government interest. This test is applied when a regulation differentiates based on a quasi-suspect class, including gender. Under strict scrutiny, the most rigorous scrutiny, a regulation will only be upheld if it is necessary to serve a compelling government interest. Strict scrutiny is applied when a regulation impacts a fundamental right or differentiates based on a suspect class, including race, national origin, and religion. Regulations rarely withstand this scrutiny.
Currently, sexual orientation is not recognized as either a quasi-suspect or a suspect class. Before the Windsor case went to the Supreme Court, the Second Circuit determined that sexual orientation is a quasi-suspect class and that DOMA was unconstitutional. Windsor argued that sexual orientation is a suspect class. A classification is deemed suspect if that group of people has historically been subject to discrimination, if the members of the group do not differ from other individuals in a way that impacts their abilities or contributions to society, if members of the group cannot or should not be expected to change the characteristic that makes them a part of that group, and if the group lacks political power because prejudice against that group prevents the group from using the political process for protection. Windsor argued that each of these factors indicates that sexual orientation is a suspect class that deserves the heightened protection of the court. Windsor Br. at 17-32.
On the other hand, BLAG argued that the Supreme Court had the opportunity to define sexual orientation as a suspect or quasi-suspect class, see, e.g., Romer v. Evans, 517 U.S. 620 (1996), but chose not to, and therefore should continue to apply the rational basis test to classifications based on sexual orientation. BLAG Br. at 24-28 & 49-59. Further, BLAG argued that DOMA did not classify based on sexual orientation, but rather it defined marriage, and that it applied equally to men and women regardless of sexual orientation because “the marriage of two men would fall outside the definition even if both were heterosexual.” BLAG Br. at 25 n.7. BLAG considered the factors that impact the decision of whether a class is suspect, and argued that none of the factors establish sexual orientation as a suspect class. BLAG Br. at 50. In particular, BLAG pointed to the political power of homosexual individuals, shown by the support of same-sex marriage by political leaders and that a majority of Americans supported same-sex marriage. BLAG Br. at 51.
The level of scrutiny applied by the Supreme Court could have had significant effects beyond the Windsor case. If the Supreme Court had identified sexual orientation as a suspect or quasi-suspect class, then both federal and state regulations would be suspect for strict or intermediate scrutiny, respectively. The state’s interests in regulations that differentiate based on sexual orientation, notably to support and protect children and the family, are unlikely to withstand anything other than rational scrutiny.
Windsor argued that DOMA is unconstitutional no matter what level of scrutiny is applied by the Court. She argued that none of the interests preferred by BLAG (encouraging men and women to have children within marriage and uniformity in the administration of federal benefits) are advanced by DOMA, and contests that BLAG’s argument is essentially that same sex couples should be treated differently because they have always been treated differently. Windsor Br. at 16. Windsor explained that the three hallmarks of a law which fails to meet the rational basis test and violate equal protection are: (1) The law was enacted for an illegitimate purpose, such as discriminatory animus; (2) it targets a narrowly defined group and imposes broad disabilities on that group; and (3) it does not fall within our constitutional tradition, for example, by violating federalism. Windsor Br. at 33-34. She went on to show that DOMA raises all three of these issues.
BLAG, on the other hand, argued that Congress acted rationally when enacting DOMA. It noted that at the time of enactment, every state defined marriage as between a man and a woman, and that, because this traditional definition was used in countless legislative decisions, adopting an alternate definition would have an unpredictable effect on federal benefits and burdens and, therefore, the federal fisc. BLAG Br. at 32. Further, BLAG argued that it was rational to limit the definition of marriage because the consequences of changing the institution of marriage, which is long-established and deeply embedded in history and tradition, are unknown-states therefore should be allowed to act as laboratories of democracy, as they are intended to in our federalist society. Finally, BLAG argued that the traditional definition of marriage serves the purposes of providing a stable structure to raise unintended and unplanned offspring, encourages the rearing of children by their biological parents, and promotes childrearing by a father and mother. BLAG Br. at 44-49.
Ultimately, the Supreme Court ruled Section 3 of DOMA to be unconstitutional, and, in a 5-4 decision, the Court held that Section 3 constituted a deprivation of liberty that is protected by the Fifth Amendment. While the full impact of this ruling remains to be seen, same-sex couples and their advisors should watch out for future decisions that will likely follow in the wake of United States v. Windsor, so that they know what approach to take in planning for their future. The attorneys at Chepenik Trushin LLP have the experience and knowledge to provide the guidance necessary to create a comprehensive estate plan that will meet the needs and wishes of same-sex couples in the post-United States v. Windsor landscape.