Supreme Court Will Review DOMA, Proposition 8
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Supreme Court Will Review DOMA, Proposition 8

By Allen Smith  12/10/2012
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The U.S. Supreme Court announced on Dec. 7, 2012, that it will review two decisions concerning the definition of marriage that could significantly reshape federal and state employment law.

In United States v. Windsor, No. 12-307, the Supreme Court will consider the question of whether Section 3 of the Defense of Marriage Act (DOMA) deprives same-sex couples who are lawfully married under the laws of their states of the equal protection of the law as guaranteed by the Fifth Amendment to the Constitution. Section 3 of DOMA defines the term “marriage" for all purposes under federal law as “only a legal union between one man and one woman as husband and wife.”

In Hollingsworth v. Perry, No. 12-144, the high court will review the question of whether the Equal Protection Clause of the Fourteenth Amendment prohibits the state of California from defining marriage as the union of a man and a woman.


Edie Windsor, who is 83 years old, challenged DOMA’s constitutionality after she had to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, because their marriage was not recognized under federal law.

Windsor and Spyer met in New York in 1963. Though there was virtually no foreseeable prospect for legal recognition of civil unions—not to mention marriage—between same-sex couples anywhere then, they became engaged to each other in 1967. They spent the next 42 years together.

In 1977, Spyer was diagnosed with multiple sclerosis and eventually became a paraplegic who used a wheelchair and required 24-hour care by Windsor and a team of nurses. When Spyer’s doctors told the couple that Spyer did not have much longer to live, they traveled to Toronto, where they were legally married on May, 22, 2007--a marriage that was recognized as valid under New York law.

Two years later, Spyer died, leaving her entire estate to Windsor. Windsor had to pay the federal estate tax solely because of DOMA, Windsor’s brief for review by the Supreme Court notes.

Determining that Section 3 was irrational, the U.S. District Court for the Southern District of New York ruled that Section 3 of DOMA was unconstitutional.

Applying a heightened level of constitutional scrutiny of DOMA, the 2nd U.S. Circuit Court of Appeals affirmed on Oct. 18, 2012. 

Windsor initially filed a petition for the Supreme Court to review her case even before the 2nd Circuit issued its decision. As her brief explained, while the Justice Department no longer defends DOMA’s constitutionality, it continues to enforce the statute pending resolution of the question of its constitutionality by the Supreme Court. As a result, Windsor gained no monetary benefit from the lower court ruling.

Nevertheless, the court asked for arguments on whether the executive branch's agreement with the court below that DOMA is unconstitutional deprives the Supreme Court of jurisdiction.

In an Oct. 26, 2012, brief, Justice Department Solicitor General Donald Verrilli Jr. said the Windsor case was “the most appropriate vehicle for this court’s resolution of the constitutionality of Section 3 of DOMA.”

A Sept. 7, 2012, friend-of-the-court brief by the ACLU in the Windsor case noted that if the Supreme Court struck down DOMA, there would be significant effects on employment law because DOMA:

Prevents or significantly restricts access to spousal health care benefits.

Denies to same-sex couples benefits provided to other married couples when a worker suffers a workplace injury or becomes ill or infirm.

Impinges on the ability of workers to plan for retirement by mandating a complete denial of Social Security benefits to same-sex spouses of covered workers.

Circumscribes immigration and naturalization laws for married same-sex couples seeking to work and remain lawfully in the United States.

In response to the Supreme Court’s announcement that it would review the Windsor case, the ACLU stated, “This is it—the Supreme Court marriage moment that the ACLU has been working toward for years.” It added, “The court also took review of California’s Prop 8, so the full range of marriage issues will now be before the high court. These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.”

“Several U.S. district courts have already ruled DOMA unconstitutional, and, if the Supreme Court does the same, it will have a significant impact on same-sex couples and employers maintaining employee benefit plans covering same-sex partners,” according to Todd Solomon, an attorney with McDermott Will & Emery in Chicago. “It will also likely impact the taxation of same-sex spousal benefits. However, even a court ruling finding DOMA unconstitutional would not mean that same-sex couples will be able to marry or have their marriage recognized in all states. Therefore, complications will remain.”

Proposition 8

In a separate case, the Supreme Court will review the 9th Circuit’s decision that the 14th Amendment’s Equal Protection Clause bars California from adopting a constitutional amendment—Proposition 8—that prohibited same-sex marriage.

In its petition for Supreme Court review,, predicted that “the 9th Circuit’s error, if left uncorrected will have widespread and immediate negative consequences.”

The petitioner in particular took issue with the appeals court’s conclusion that Proposition 8 serves no purpose other than proclaiming publicly the “lesser worth” of gays and lesbians as a class and to “dishonor a disfavored group.”

Not so, asserted in its petition. “This conclusion conflicts with a host of state and federal appellate decisions upholding the traditional definition of marriage as rationally related to society’s vital interest in channeling the unique procreative potential of opposite-sex relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. Indeed, the 9th Circuit’s sweeping dismissal of the important societal interests served by the traditional definition is tantamount to a judicial death sentence for traditional marriage laws throughout the circuit.”

Reacting to the Supreme Court’s announcement that it will review the case, said in a statement, “More than seven million Californians of all races, creeds and walks of life voted for Proposition 8 to preserve the traditional definition of marriage because they believe that the unique relationship between one man one woman continues to meaningfully serve as the cornerstone of society, as it has since the beginning of time.”

It added, “In the latest chapter of the fight to defend marriage—the official proponent of Prop 8 and its sole defender against same-sex marriage advocates, the Hollywood elite and activist judges—petitioned the U.S. Supreme Court to preserve traditional marriage and to affirm the voters’ constitutional right to maintain the longstanding definition of marriage as between a man and a woman.”

In addition to the constitutional question, the court asked for arguments on whether could appeal the 9th Circuit's ruling when, as Marriage Equality USA phrased it, "they would suffer no personal harm from loving, committed same-sex couples being able to marry again in California.”

The two cases accepted by the Supreme Court are expected to be argued in spring 2013, with a decision issued by late June.

Allen Smith, J.D., is manager, workplace law content, for SHRM.

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