When Clara Spyer died she left an inheritance for her spouse, Edith Windsor. The estate tax has an unlimited marital deduction. Nonetheless there was $363,053 in estate tax. The reason for this is that Ms. Spyer and Ms. Windsor were both women. Under federal law, specifically Section 3 of the Defence of Marriage Act, benefits of marriage can only go to opposite sex couples regardless of state law. The Second Circuit has upheld the decision of a district court that Section 3 of DOMA violates the Constitution. The decision is well worth reading. The list of organizations filing amicus briefs is entertaining by itself. Not too often you get to see Jay Sekulow and Lambda Legal Defense & Education Fund, Inc. on the same list. Since this case has gotten so much coverage, I think there is one thing that people need to get straight to properly understand it. It is not about DOMA in its entirety. It is about Section 3 of DOMA.
Some Misunderstanding About The Scope Of The Decision
The headline coverage of this decision and related decisions like Gill implies that the entire Defense of Marriage Act might be declared unconstitutional. That is a misconception. The Defense of Marriage Act has two major provisions
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Section 2. Powers reserved to the states
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No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
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Section 3. Definition of marriage
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In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.
Section 2 means that a state does not have to recognize same sex marriages performed in other states. That provision is not being addressed in this and related cases. It is only Section 3 of DOMA, which indicates that for purpose of federal law same sex marriages will not be recognized, that is being challenged in this case.
I find it interesting that the “left” and the “right” tend to flip flop on where they stand on states rights versus federal supremacy, depending on what the issue is. I think there are very few constitutional purists floating around. Activists and advocates, on both sides of many issues, use the Constitution like a drunk uses a lamppost. More for support than illumination.
The Decision – An Idiosyncratic Reading
As I wrote above, the decision is well worth reading. It is practically a seminar in judicial reasoning about anti-discrimination logic. When a law or a practice discriminates against a group it can be ruled against, because it has no rational basis. Some courts have said that about Section 3 of DOMA, but the Second Circuit refused to take that stance. Because of Section 3 of DOMA the government can deny people pension payments. That saves money (“protects the fisc”). Nasty and unfair perhaps, but not irrational. If the discriminatory law or practice has some shred of rationality the Court then will look at the characteristics of the group being discriminated against to see whether they are a “suspect class”. It is an odd term. It sounds critical of the group, but it is actually a critique of how the rest of us have been treating the group.
I am going to explain my understanding of the “suspect class” analysis. Airlines discriminate against tall people, presumably with the acquiescence or active support of the FAA. They have a rational basis for doing so. By making seating arrangements based on the principle that most people are short they can squeeze more people in the plane. Are tall people a “suspect class” ? Well, actually, no. If life in these United States were a role playing game, the lowest difficulty setting would probably be a straight white male who is one standard deviation above mean height. (Unless you are a good enough athlete to get into the NBA being much taller than that is not so good) Tall people have never been denied the right to vote. Job discrimination, on net, is probably in their favor. As I make the case for tall people I would end up having to stretch for something ridiculous like my father not having the opportunity to be a ball turret gunner.
Homosexuals (That is the term the Court uses) are another story entirely. In my mind the best example in the twentieth century would be Alan Turing. Alan Turing made profound breakthroughs in our understanding of artificial intelligence and an enormous contribution to the defeat of fascism. He was probably driven to suicide because he was gay
I know it is not an example from the United States, but the cultural forces are very similar.
There is a distinction though between suspect classes. Some require “strict scrutiny” and others “intermediate scrutiny”. Although the persecution of “homosexuals” has been severe you have never had to demonstrate your heterosexuality in order to vote. According to the Second Circuit, laws discriminating against “homosexuals” are subject to “intermediate scrutiny”. The Court found that intermediate scrutiny is enough to take down Section 3 of DOMA.
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
I asked activist, attorney Cathy Brennan for her comment on the decision.
Little by little,courts will undo the damages caused when Bill Clinton signed DOMA. DOMA impacts virtually every aspect of a gay person’s life, from taxation to social security benefits to immigration rights. Eventually, fairness dictates that this barrier to full participation in society must fall. There is no rational basis to deny gay and lesbian couples these rights.
You can follow me on twitter @peterreillycpa.
Originally published on Forbes.com Oct 20th, 2012