United States v. Windsor

United States v. Windsor is an appellate case pending in the United States Supreme Court of a lawsuit in which the United States Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Southern District of New York's decision in Windsor v. United States, which found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, as it defines the term marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite sex who is a husband or a wife".

Background
In 2007, Edith "Edie" Windsor and Thea Spyer, residents of New York, married in Toronto, Ontario, after 40 years of romantic partnership. Canada's first openly gay judge, Justice Harvey Brownstone officiated. Windsor had first suggested engagement in 1965. Spyer died in 2009, at which time New York legally recognized same-sex marriages performed in other jurisdictions. After Spyer's death, Windsor was required to pay more than $363,000 in federal estate taxes on her inheritance of her wife's estate. If federal law accorded their marriage the same status as different-sex marriages recognized by their state, she would have paid no taxes.

Windsor approached several gay rights organizations, all of whom turned her down. She was then referred to Roberta Kaplan, at the firm of Paul, Weiss, Rifkind, Wharton & Garrison, who had unsuccessfully argued the case challenging the inability of same-sex couples to marry in New York before the New York Court of Appeals in 2006. "When I heard her story, it took me about five seconds, maybe less," said Kaplan, who was joined in Windsor's case by the American Civil Liberties Union (ACLU).

District Court
Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the ACLU, filed the case in the U.S. District Court for the Southern District of New York on behalf of Windsor as executor of Spyer's estate.

On February 23, 2011, Attorney General Eric Holder released a statement regarding two lawsuits challenging DOMA section 3, Windsor and Pedersen v. Office of Personnel Management. It explained that the Obama administration had determined that classifications based on sexual orientation should be subject to heightened scrutiny, and therefore it could no longer defend the constitutionality of DOMA's section 3. The administration intends to continue enforcing the law until it is either repealed by Congress or finally declared unconstitutional in court. On April 18, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. Department of Justice attorneys did not oppose the motion.

Windsor's attorneys filed a motion for summary judgment on June 24. New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, arguing that DOMA Section 3 cannot survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage." On August 1, BLAG filed a brief opposing Windsor's motion for summary judgment on the grounds that sexual orientation is not subject to heightened scrutiny.

On June 6, 2012, Judge Barbara S. Jones ruled that, based on rational basis review, section 3 of DOMA is unconstitutional as applied in the case as it violated plaintiff's rights under the equal protection guarantees of the Fifth Amendment and ordered Windsor receive the tax refund due her. The plaintiff said afterward, "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."

Court of Appeals
The Justice Department filed a notice of appeal on June 14, 2012, despite its approval of the ruling, to facilitate BLAG's defense of the statute. BLAG filed a motion to dismiss the DOJ's Second Circuit appeal on July 19, claiming the DOJ lacks standing because it prevailed in the District Court. Windsor's attorneys filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit's review, citing the plaintiff's age and poor health. Despite the Supreme Court filing, the Second Circuit on August 3 scheduled oral arguments for September 27. The DOJ replied to BLAG's motion to dismiss on August 3, asserting (1) its standing as an "aggrieved party" because the District Court's stay prevents DOJ from taking steps to cease enforcement of section 3 of DOMA and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.

On September 27, Chief Judge Dennis Jacobs and Judges Chester J. Straub, and Christopher F. Droney heard arguments in the case. On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional. The majority opinion stated, "It is easy to conclude that homosexuals have suffered a history of discrimination." Thus they were part of a quasi-suspect class that deserves any law restricting its rights to be subjected to intermediate scrutiny. Because DOMA could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection guarantees of the Fifth Amendment. It was the first federal court of appeals decision to hold that laws that classify people based on sexual orientation should be subject to intermediate scrutiny.

Supreme Court
Following Windsor's petition for certiorari before judgment and before the Court of Appeals ruled, the Department of Justice on September 11, 2012, filed its own petition for certiorari before judgment with the Supreme Court. After the appellate ruling on October 18, the parties filed supplemental briefs.

On December 7, the Supreme Court granted certiorari in the case, now United States v. Windsor, accepting the DOJ's petition. In addition to the question presented by the DOJ, whether section 3 of the DOMA violates the Fifth Amendment's guarantee of equal protection, the court also asked the parties to brief and argue two other questions: whether the government's agreement with the Second Circuit's decision deprived the court of jurisdiction to hear the case, and whether BLAG has standing, i.e., the legal right to be involved in the case, under Article III of the Constitution. On December 11, the Supreme Court appointed Vicki C. Jackson, a professor of constitutional law at Harvard Law School, as an amicus curiae to argue the two additional questions it posed.

BLAG did not comment on the Supreme Court's grant of certiorari. Windsor noted in a statement that when she and her partner met nearly 50 years before that they both never dreamed their marriage would land before the Supreme Court "as an example of why gay married couples should be treated equally, and not like second-class citizens." Noting that her deceased partner would be proud Windsor added, "The truth is, I never expected any less from my country." BLAG filed its own petition for certiorari on December 28 to enable the court to rule on the constitutionality of DOMA section 3 if it decides the DOJ's agreement with the 2nd Circuit's decision deprives the Supreme Court of jurisdiction to hear the DOJ's petition. The Supreme Court has scheduled oral arguments for March 27, 2013.