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By Jenn Nowicki
June 26, 2013
Credit : Campus Progress/Varun Anand


The Supreme Court has declared the Defense of Marriage Act (DOMA) unconstitutional in a 5-4 decision today. Perennial swing vote Justice Anthony Kennedy wrote the majority opinion, declaring that DOMA is a violation of the equal protection clause of the Fifth Amendment. Ruth Bader-Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer joined the majority opinion, while Chief Justice John Roberts and Justice Antonin Scalia each wrote dissenting opinions.

Kennedy found that DOMA infringed on federalism grounds, writing that “[DOMA] imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper…The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Several DOMA cases had been pending in federal courts before and during the Windsor case, with all courts finding DOMA unconstitutional, including two Appellate Courts.

DOMA was enacted in 1996 during the Clinton administration to prevent the federal government from recognizing same-sex marriages, despite no states legalizing same-sex marriage until Massachusetts in 2004. Section 3 of DOMA stated in part that with regard to the federal government, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The case began in 2009 when Edith Windsor, a woman legally married to another woman in Canada who relocated to New York in 2007, was denied an exemption from federal estate taxes under DOMA after her partner passed away. Had her marriage been recognized by the US federal government, she would have been relieved from having to pay $363,000 in estate taxes.

During this time, Eric Holder, US Attorney General, announced that the Obama administration had concluded DOMA was unconstitutional and therefore declined to defend the legislation in Court. House Republicans took up the defense instead, spending nearly $3 million to argue the constitutionality of DOMA in Windsor and other pending cases.

Windsor’s case went before the U.S. District Court for the Southern District of New York, and in 2012 Judge Barbara S. Jones found DOMA unconstitutional, writing that “it is unclear how DOMA advances [traditional marriage].”

Windsor continued on to the 2nd Circuit Court of Appeals, and was decided in October 2012. Judge Dennis Jacobs, writing for the majority, found DOMA in violation of the Fifth Amendment’s equal protection holdings and held that DOMA “is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage.”

“Preservation of a traditional understanding of marriage…is not an exceedingly persuasive justification for DOMA,” Jacobs said. Even though “same-sex marriage is unknown to history and tradition…law (federal or state) is not concerned with holy matrimony.”

The Supreme Court agreed with the Second Circuit on equal protection holdings, finding that DOMA constituted unlawful discrimination against gay and lesbian couples who have been granted marriage rights by their respective states. Though same-sex marriage is still regulated to the states, the decision ensures that same-sex couples are now allowed to receive over 1,000 federal rights that their married heterosexual counterparts already receive.

“For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status,” Kennedy wrote. “This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.”

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