The Federal Marriage Challenge of U.S. v. Windsor and Family Restoration

           Family restoration involves stabilizing marriage for the common good.  The single greatest influence that can be presented to the world on the issue of marriage is for each married person to personally live out marriage in all its God-ordained fullness and radiant beauty.  Laws generally reflect that influence of how citizens treat marriage, one way or the other.  Two generations of easy divorce, however, have weakened marriage, effectively making marriage expansion more acceptable.  United States v. Windsor, U.S., No. 12-307 (June 26, 2013), reflects efforts to expand marriage from its original design to accommodate changing cultural tides.

The Defense of Marriage Act (DOMA) was enacted by Congress in 1996 with two operative sections: Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other States, and Section 3 provided for a federal definition of "marriage" and "spouse" that reflected a legal union between a man and a woman.  Only Section 3 was challenged in United States v. Windsor, and Justice Kennedy writing for the five-justice majority (which included Kagan, Ginsburg, Sotomayor and Breyer J.J.) ruled that Section 3 of DOMA violated the due process and equal protection principles of the Fifth Amendment.

             The Windsor case actually involved the federal inheritance tax. A lesbian couple, married in Canada in 2008, resided in New York, which in 2009 recognized out of state same-sex marriage (and has since legalized it in 2010). When one of the women died, leaving her estate to her partner, Edith Windsor, because her same-sex marriage was not recognized under federal law (as defined by DOMA), Windsor had to pay estate taxes of over $300,000 on the transfer of the estate.  If their marriage had been recognized under federal law, Windsor could have taken the unlimited marital deduction and received the inheritance free of estate taxes (though estate tax would be due on the remaining estate upon her death).  I have previously researched and analyzed this case, and have published on it at the request of the Penn State Law Review.  That article is available for your review and downloading at the Social Science Research Network (SSRN).

            The ruling in Windsor declared Section 3 of DOMA, defining marriage for federal purposes, unconstitutional.  Because her marriage was recognized in her State of residence the Court reasoned it should be recognized for federal purposes as well.  Windsor will recover the estate taxes she paid, and same-sex couples who are legally married in their State of residence are now entitled to over 1100 federal benefits, rights, and protections. These collateral effects of marriage expansion have been apparent for some time, and I have previously discussed these in an article which is also available for review and downloading from the SSRN. It is still unclear what happens to those federal benefits when same-sex married couples move to a state that doesn't recognize their marriages.

            While the majority acknowledged that Congress sometimes must define marriage for federal purposes, it ruled that Congress could not "seek[] to injure the very class New York seeks to protect."  This is exceptional, in that no State, including New York, recognized same-sex marriage at the time DOMA was enacted by bipartisan majorities in both Houses of Congress and was signed into law by President Clinton.
 
            The Court struck down the part of the federal marriage law defining the institution of marriage as a union between one man and one woman for the purpose of interpreting and administering all federal laws and programs. Without Section 3, the federal government will not be able to define marriage for its own federal policies and federal laws; it must accept whatever states decide about same-sex marriage. See the helpful discussion at CitizenLink.

            Justice Kennedy's opinion is challenging to sort through with greatly varied reasoning, heavy on emotional appeal, used stigmatizing labels, sometimes pejorative adjectives, and is quite vague in some parts. As in his other big opinions from past years (Lawrence v. Texas, Romer v. Evans), Kennedy might have left both his fellow justices (at least on the conservative side) and legal analysts guessing what arguments he intended to make and what the effect his opinion will have in future cases. One of the primary purposes of a Supreme Court decision is not only to decide the precise dispute involved in the case, but also to explain the law in a way that gives guidance to lower courts and attorneys who may have to deal with similar types of cases in the future. The Windsor opinion, on the other hand, may have created a bonanza for law professors who thrive on writing law review articles about the hidden meanings of Supreme Court decisions.  It is indeed the first time the High Court has invalidated a federal law defining or enforcing the definition of marriage.  It did so without any thoughtful consideration of whether male-female marital unions might be distinctive and whether they should or should not deserve any special, unique legal status for the common good.

            The dissents in Windsor are generally focused on a lack of Court authority for the ruling. The Court has no jurisdiction to decide the case nor authority to overturn Section 3 of DOMA, according to Justice Scalia, and his dissent (like his dissents in Lawrence and Romer) dissects the majority's reasoning, but also offers a chilling warning. He essentially charges the majority of deliberately using language and reasoning that sets up a future case or controversy that could allow those same five justices to take the step they did not take this time, of forcing same-sex marriage on all 50 states.  For now, however, the ruling did not create a constitutional right to same-sex marriage. The opinion clarifies that only same-sex couples whose marriages are legally recognized in their home state may obtain federal benefits such as the unlimited marital deduction, immigration claims, and other federal advantages.  Justice Kennedy's opinion made this boundary explicit: "This opinion and its holding are confined to those lawful marriages." Windsor, 26.

            This case, though about a federal law, is clearly very important to states, though nothing was changed regarding state laws.  State representatives may wish to secure and shore-up their state laws on marriage.  Within hours of last week's marriage rulings, in fact, Governor Mike Pence of Indiana issued a statement calling upon the General Assembly to place a constitutional amendment on the ballot for the people of Indiana to vote on next November.
  
            Marriage stabilization is the beginning of family restoration for the common good.  Your marriage and mine are the single greatest influences that can be presented to the world on the significance of marital oneness.  Laws on marriage generally reflect how citizens treat marriage, and how society views it and wishes its lawmakers to treat it.  United States v. Windsor is historic in a national turn from marriage's original design to accommodate changing cultural tides, rather than maintaining a solid foundation for present and future posterity.


            The next post will consider the California case of Hollingsworth v. Perry and how the Supreme Court's opinion in that matter affects family restoration.