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Religious Tolerance logo

"United States v. Windsor" lawsuit succeeds in having part of
federal DOMA law ruled unconstitutional by the U.S. Supreme Court

2013-JUN-26: U.S. Supreme Court declares
§ 3 of the federal Defense of Marriage Act
(DOMA) to be unconstitutional.

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The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States

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This topic is continued from the previous essay

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2013-JUN-26: Background to the "United States v. Windsor" case involving the federal Defense of Marriage Act (DOMA):

The Court ruled that Section 3 of the federal 1996 Defense of Marriage Act is unconstitutional. This was the key section of the bill that had prohibited the federal government from recognizing legal, registered same-sex marriages. It had denied all same-sex married couples benefits, and protections from 1,138 federal programs that are routinely made available to opposite-sex couples. These programs included bankruptcy programs, federal student aid, federal employee benefits, family medical leave act, immigration, medicaid, medicare, military spousal benefits, private employment benefits, social security, supplemental security income, taxes, temporary assistance for needy families, veteran spousal benefits, etc.

A surprisingly large percentage of media reports made statements like: "The high court struck down the Defense of Marriage act as unconstitutional." and "DOMA is dead." This is incorrect. Much of the federal DOMA bill remains intact, including the section that states that individual states do not have to recognize marriages solemnized in one of the other states where marriage equality had been achieved.

By coincidence, the ruling was released precisely ten years after the High Court's Lawrence v. Texas ruling which decriminalized same-gender, private, sexual behavior by adults in the U.S. Also, perhaps by coincidence, the same court issued its ruling in Obergefell v. Hodges two years later than Windsor on the same date: 2015-JUN-26. This was the ruling that legalized gay marriage across the entire country.

The lawsuit was launched by Edith Windsor:

Thjea Spyer & Edith Wilson Dr. Thea C. Spyer, shown on the left in a photograph taken for their wedding announcement, met Edith in New York City's West Village during the early 1960's. They lived together in New York State for 44 years, and were the subjects of a documentary film titled: "Edie & Thea: A Very Long Engagement." 1 They were one of the first couples to register as domestic partners in New York City. In 2007, the two married in Canada which had made marriage available to same-sex couples two years previously. The marriage was not a simple procedure, because by that time Thea was a paraplegic due to Multiple Sclerosis.

Their marriage was recognized by New York State. However, because of DOMA, the federal government could not recognize them as other than mere roommates. When Thea died, the IRS slapped Edith with an federal inheritance tax of about $363,000. This triggered a New York State inheritance tax of $275,000. If Edith had been married to a man, she would have had to pay nothing. In 2010-NOV, she launched what was to become one of many lawsuits against DOMA. Hers was one of two lawsuits to reach a federal Circuit Court of Appeals, both of which ruled DOMA to be unconstitutional. Her case was appealed to the U.S. Supreme Court and was accepted by that court in late 2012. Hearings were held during 2013-MAR. The court delivered its ruling on 2013-JUN-26.

She won, and will receive a refund of about $638,000 plus about $70,000 in interest. 2 She will also receive the admiration and respect of tens of millions of Americans, perhaps less kind response from tens of millions of other Americans, and a permanent place in the history books.

"Turtle Heart" posted a comment to a CNN article about the ruling:

"This is a beautiful woman with a sterling spirit. She is still beautiful at her age. Watching her satisfaction at the outcome was a touching tribute to the dignity of her long, loving relationship. It is incredibly commendable, the behavior of her attorneys. All together a great team. I am sure the rewards will go where needed over time."

Her legal team took her case pro-bono.

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About the Court's ruling:

To many people, the overturn of the key section of DOMA was a surprise. However, one evangelical Christian leader, Dr. Albert Mohler, president of The Southern Baptist Theological Seminary, predicted it more than two years in advance of the Court ruling. On a Focus on the Family radio program in late 2011-FEB, he said:

"I think it's clear that something like same-sex marriage is going to become normalized, legalized and recognized in the culture. It's time for Christians to start thinking about how we're going to deal with that."

He predicted that pending legal challenges at the time against DOMA that its nullification would be likely. He said:

"You can say, the cards are pretty much stacked against DOMA." 6

Our group predicted that the ruling would be by a 5:4 split vote. This turned out to be correct. That prediction did not require a deep analysis. Because of the conservative/liberal split in the Court, essentially all rulings involving moral and ethical matters are decided by a 5:4 vote.

As expected, the four "liberals" on the court -- Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg -- voted against DOMA's constitutionality. The four "conservative" or "strict constructionist" members -- Justice Antonin Scalia, Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito -- voted in favor of DOMA's constitutionality. Justice Anthony Kennedy, a conservative who is often considered a swing vote on the Supreme Court, supported the liberal Justices and wrote the majority ruling. 3 He said that Section 3 of the act was unconstitutional. This is the section that requires the federal government to ignore same-sex couples who have been legally married, and to direct its 1,138 marriage plans, support, and protections solely to married opposite-sex couples. Justice Kennedy gave two reasons why this part of DOMA is unconstitutional:

  • First reason: The third section of DOMA violated the Fifth Amendment's guarantee of equal liberty, and wrote inequality into federal law.

    Justice Kennedy wrote:

    "DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal." 4

He also wrote:

"DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the state has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.

He wrote that the purpose of the law was to impose a disadvantage and:

"... a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."

He concluded that:

    "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." 5

There is one very interesting and important aspect about Justice Kennedy's ruling. It criticizes the federal government for treating same-sex and opposite-sex couples differently because this violates the equal liberty provisions of the Fifth Amendment of the U.S. Constitution. This argument could also be used to attack as unconstitutional any state that treats same-sex and opposite-sex couples differently by allowing the latter to marry while refusing marriage to the former. After all, the states and well as the federal government must follow the U.S. Constitution. Within a matter of a few weeks after the DOMA and California Prop. 8 rulings were announced, a District Court in Ohio used Kennedy's equal liberty argument to imply that the Ohio Constitution is in violation of the federal Constitution. Judge Black ordered the state to recognize the marriage of two men who flew to Maryland, married there, returned to Ohio and launched a successful lawsuit to have their out-of-state marriage recognized in Ohio. Judge Black gave them an injunction that at least temporarily forces the state to recognize their marriage. It is very likely that Justice Kennedy's arguments will be used by other courts in the future.

  • Second reason: DOMA violates the basic principle of federalism upon which the United States was built. The U.S. Constitution states that any areas of jurisdiction that are not specifically granted to the federal government are assigned to the individual states or to the people. Marriage is not mentioned in the Constitution. Therefore marriage, including the laws that define who is eligible to marry, is the responsibility of the individual states. Thus, the federal government has no right to direct funds and other benefits to some married couples -- namely opposite-sex spouses -- and not to other married couples -- namely same-sex spouses.

After analyzing the ruling, plaintiff Edith Windsor said:

"Children born today will grow up in a world without DOMA, and those same children who happen to be gay will be free to love and get married."

In mid-2013, loving, committed same-sex couples can marry in Canada and in over a dozen other countries in the world including England, New Zealand, and Wales. Many observers expect that same-sex couples will be able to marry in all predominately English speaking countries -- with the exception of the U.S. -- by the end of 2014. However, in the U.S., SSM is available in only 13 states and the District of Columbia. California became the 13th state because of the second ruling by the Supreme Court on the same day as their DOMA decision. That other ruling declared that the proponents of Proposition 8 -- a citizen initiative in California which banned SSM -- to not have standing to appeal the case. Thus the California Divisional Court ruling stands. Same-sex couples started to marry two days after the Supreme Court's ruling.

However, most adults feel that it is inevitable that both same-sex and opposite-sex couples will be able to marry in all 50 states long before children born in 2013 start thinking about proposing marriage. Whether children born this year who have a homosexual orientation will feel free to love depends on how the culture in their state changes over the next two decades, and what their reaction to that culture is.

Commentators differ somewhat on how long it will take before SSM becomes available in all U.S. states and in what order the states will legalize SSM.

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Discussion of the Court ruling in U.S. v. Windsor continues in the next essay.

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Related essay:

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jamie McGonnigal, "GLAD, ACLU File New Federal Challenges to DOMA." Talk About Equality, 2010-NOV-08, at:
  2. Jeanne Sahadi, "Edie Windsor is owed $638,000 plus interest," CNN, 2013-JUN-28, at:
  3. Mark Sherman, "Supreme Court rulings give boost to gay marriage," Associated Press, 2013-JUN-27, at:
  4. The text of the Supreme Court ruling can be read at The Chicago Tribune, at:
  5. Alex Altman & Zeke Miller, "In Landmark Ruling, Supreme Court Strikes Down Defense of Marriage Act," Time/Swampland, 2013-JUN-26, at:
  6. Nathan Black, "Christians Need to Prepare for Normalization of Gay Marriage," Christian Post, 2011-FEB-26, at:

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Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconstitutional > Windsor v. U.S. > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconstitutional > Windsor v. U.S. > here

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2013-JUN-28
Latest update: 2013-SEP-07
Compiler: B.A. Robinson

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