On February 21 and 22 the parties in United States v. Windsor, the pending challenge to Section 3 of the Defense of Marriage Act (DOMA), filed briefs in the Supreme Court in compliance with the expedited briefing schedule that the Court ordered shortly after granting the Solicitor General’s petition to hear the case. The Justice Department (DOJ) filed two briefs, the first addressed to the merits (whether Section 3 violates the 5th Amendment’s equal protection requirement) and the second addressed to jurisdiction (whether the case presents the Court with a real ‘case or controversy’ and whether the Bipartisan Legal Advisory Group of the House of Representatives [BLAG] has constitutional “standing” to participate as a party). BLAG and counsel for Edith Windsor filed briefs on the jurisdictional questions as well. Still to come later in February are Windsor’s brief on the merits and amicus briefs in support of her position that Section 3 is unconstitutional.
Section 3 of DOMA provides that the federal government will recognize only different-sex marriages for all purposes of federal law. It was enacted in 1996 in reaction to litigation brought by same-sex couples in Hawaii seeking the right to marry. Section 2 of DOMA, not involved in this case, purports to relieve states from any obligation to accord “full faith and credit” to same-sex marriages performed in other states.
Edith Windsor filed suit challenging the constitutionality of Section 3 after the Internal Revenue Service (IRS) relied on that statute in refusing to refund $363,053 in federal estate taxes levied against the estate of Thea Spyer, Ms. Windsor’s late wife. The women, New Yorkers, married in Canada in 2007 after being life partners for many decades. Ms. Spyer died in 2009, after several New York intermediate appellate courts had ruled that same-sex marriages legally contracted in other jurisdictions would be recognized in New York. The Internal Revenue Code exempts from estate taxes bequests to surviving spouses, and Ms. Spyer’s will left her estate to Ms. Windsor.
After Windsor, represented by Roberta Kaplan of Paul Weiss LLP and the American Civil Liberties Union LGBT Rights Project (ACLU), filed suit for a tax refund in federal court, the Justice Department, which had been defending the constitutionality of Section 3 in litigation in other courts subject to circuit authority holding that sexual orientation claims receive rational basis review, studied the issue anew because the 2nd Circuit, with jurisdiction over New York claims, had not taken a position. DOJ concluded that sexual orientation claims merit heightened scrutiny, and that Section 3 could not survive such review. The President ordered that the Executive Branch continue to enforce Section 3, although DOJ would no longer defend its constitutionality in court. DOJ responded to Windsor’s case with a motion to dismiss, however, as representative of the government, while notifying congressional leaders that it would not be defending Section 3 on the merits.
The Bipartisan Legal Advisory Group of the House of Representatives was convened by House Speaker John Boehner to respond to these developments, and by a party-line vote of 3-2 authorized the Counsel of the House of Representatives to seek to intervene in pending DOMA lawsuits to defend Section 3. The House Counsel then hired former Solicitor General Paul Clement to represent BLAG in these cases. BLAG has intervened as a defendant in numerous cases in addition to the Windsor case. After granting BLAG’s motion to intervene, the district judge ruled in favor of Windsor, issuing a decision last spring finding Section 3 unconstitutional using a form of “intensified” rational basis review (similar to the approach taken by the 1st Circuit Court of Appeals in a Massachusetts case) and ordering the government to refund the tax payment. Both DOJ and BLAG appealed to the 2nd Circuit. Windsor also filed a petition with the Supreme Court during the summer, seeking review before judgment by the 2nd Circuit, and DOJ followed suit early in September with a similar petition.
The 2nd Circuit rejected a suggestion to delay its argument pending a Supreme Court ruling on these pending petitions, instead scheduling an expedited argument in September and issuing its decision affirming the district court before the Supreme Court had formally opened its October 2012 Term. The 2nd Circuit went a step further than the district court, holding that sexual orientation discrimination claims merit heightened scrutiny, as DOJ had argued, and that Section 3 fails that test.
After the 2nd Circuit’s ruling, DOJ filed an additional brief with the Supreme Court urging that it review the 2nd Circuit’s decision. The Supreme Court granted that petition on December 7, 2012. A few weeks later, BLAG filed its own petition with the Court seeking review of the 2nd Circuit’s decision. To date, the Court has not ruled on the petitions filed by Windsor and BLAG.
DOJ’s brief on the merits generated headlines as another major statement by the Obama Administration in support of same-sex marriage, but really broke little new ground legally, as it reiterated the arguments DOJ had made to the Court of Appeals concerning heightened scrutiny and the failure of BLAG to show that Section 3 met that standard. As in its arguments to the 2nd Circuit, DOJ argued that Section 3 would survive judicial review under the traditionally deferential rationality test, but it conceded that under a more demanding form of rational basis review, Section 3 should also be held unconstitutional. However, DOJ’s brief forcefully rejected BLAG’s arguments concerning the appropriate standard of review.
BLAG had argued in its merits brief filed in January against heightened scrutiny, claiming that gay people are now a politically powerful group that does not need special protection from the courts, citing the November 2012 electoral victories for same-sex marriage in Maine, Maryland and Washington State, and the increasing number of successful openly gay candidates for Congress. BLAG suggested that the past history of anti-gay discrimination by the government and by society was no longer a justification for heightened scrutiny in light of changing attitudes, and urged that the Court allow the normal political process to determine policy questions about federal recognition of same-sex marriages.
DOJ rejected these arguments decisively. “Gay and lesbian people have suffered a significant history of discrimination in this country,” said DOJ. “No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.” The brief goes on to cite chapter and verse on discrimination in employment, immigration, hate crimes, child custody, police enforcement, and anti-gay voter referenda. The brief observes that even BLAG concedes “that gay and lesbian people have endured discrimination in this county since the 1920s,” and that the paucity of earlier documentation “is likely attributable to the fact that gay and lesbian people, by and large, kept their sexual orientation hidden for fear of discrimination or persecution.” On the issue of “political power,” DOJ distinguished between advances through litigation and through the ballot box, saying that BLAG’s focus on recent electoral victories “ignores the broader context, which overwhelmingly demonstrates the political challenges faced by the gay and lesbian minority,” pointing out particularly the epidemic of mini-DOMAs enacted by states as statutes or constitutional amendments since the passage of federal DOMA in 1996 and most recently in 2012 in North Carolina. BLAG had argued that the November ballot victories should be deemed “outcome determinative” on the question of heightened scrutiny, but DOJ pointed out that the Court continues to apply strict or heightened scrutiny in cases involving race and sex, despite the political advances of people of color and women, in light of historic discrimination.
As to the justifications offered for Section 3 by BLAG, DOJ pointed out that under heightened scrutiny new arguments long post-dating the 1996 enactment were irrelevant, the issue being the reasons why Congress acted when it passed the law. Even before DOJ changed its position on the constitutionality of DOMA, it had publicly rejected the reasons cited in the legislative history of 1996 in its filings in the Massachusetts case. Responding to BLAG’s argument that the Court should allow the democratic process to run its course and not cut short the debate by constitutionalizing the issue, DOJ wrote, “That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.”
In its separate brief on jurisdiction, DOJ responded to two questions posed by the Court: whether DOJ’s agreement with Windsor and the 2nd Circuit that Section 3 is unconstitutional deprives the Court of jurisdiction for lack of a real “controversy” and whether BLAG itself has standing to seek review of the lower court’s decision. DOJ strongly argued that it has presented a real controversy to the Court, pointing out that the government is continuing to enforce Section 3 pending a definitive ruling by the Court, and thus it has refused to comply with the district court’s order to issue a tax refund to Windsor. Even though DOJ agrees on the merits that Section 3 is unconstitutional, DOJ argues that the government remains an “aggrieved party” in this case because it is subject to the district court’s order and will continue to enforce Section 3 and be faced by additional lawsuits until the matter is resolved. Thus, it argues, the parties have a “continuing controversy.” Furthermore, it notes that the statute describing the Court’s jurisdiction states that “any party” can petition the Court for review of a lower court decision. The Court has discretion to reject such a petition if it determines that it is being asked for an advisory opinion, but DOJ argues that there is an important live controversy about the constitutionality of Section 3 that needs to be resolved on a national basis.
On the other hand, DOJ argues that BLAG does not by itself have standing under the Constitution to represent the interests of the United States in this case, asserting that neither BLAG, its members, nor the House of Representatives as a whole has suffered any particularized injury that would confer standing, and that under the separation of powers only the Executive Branch through DOJ is authorized to represent the United States in litigation. DOJ distinguished the main case upon which BLAG relies, Chadha, which involved the constitutionality of a statute giving either house of Congress the right to veto a decision by the Attorney General not to deport an alien. In that case, the Supreme Court allowed both houses of Congress to intervene as parties to defend their prerogatives under that statute. This case is different, argues DOJ, because no particular prerogative of Congress is at stake, and the Supreme Court has never recognized congressional standing in general to defend the constitutionality of a statute on an argument that Congress always has an interest in defending the statutes it has enacted. (BLAG argues, in opposition to this position, that a decision on the merits that sexual orientation claims merit heightened scrutiny, would impose a permanent restriction on the ability of the House to pass legislation, thus giving it a particularized interest. This argument is absurd, as it would confer standing on the House to bring to the Court any case in which a lower court upholds a due process or equal protection claim against a federal statute.)
In her brief on jurisdiction, a collaboration of the ACLU, the NY Civil Liberties Union, Roberta Kaplan and attorneys from Paul Weiss, and Pamela Karlan and Jeffrey Fisher and the Stanford Law School Supreme Court Litigation Clinic, Windsor expands on this point with particularity. It seems that under federal statutes a citizen seeking a tax refund must sue the United States government, so, she argues, the United States, as represented by DOJ, is a necessary party in this case. If the case itself is properly before the Court, the government must be a party before the Court, or else there is no statutory authority to order a tax refund. And, since the government has refused to refund the money, there is a genuine dispute between Windsor and the government. Windsor also argued that because her cause of action is against the U.S. government, the question whether BLAG has independent standing to bring this case before the Court is irrelevant to the question of the Court’s jurisdiction.
BLAG, as one might have anticipated, stakes out quite a different position in its new brief on jurisdiction. Its case is built in part on a measure enacted by the House of Representatives in January 2013, a month after the Court granted review in this case, by which the House expressly authorized BLAG to “continue” to represent its interest in defending Section 3 of DOMA in this and other cases. BLAG’s brief stresses the word “continue” and cites a history going back several decades of BLAG authorizing intervention in pending litigation on behalf of the House of Representatives, and courts (including the Supreme Court) allowing it to participate. BLAG argues in line with the arguments filed in January by Prof. Vicki Jackson of Harvard, who was appointed by the Court to present the case against jurisdiction, that DOJ does not have standing in the case because its view prevailed in the 2nd Circuit. BLAG disputes DOJ’s assertion that the government is an “aggrieved party,” arguing that the government got exactly what it was seeking from the lower court, and quoting prior Supreme Court decisions asserting that a party that got what it wanted from a lower court could not bring its case to the Supreme Court.
But BLAG does not argue that the Court should not decide the case. First, it contends that because it has standing it can bring the issue of Section 3’s constitutionality before the Court for resolution. Thus, BLAG argues that the Court should dismiss DOJ’s petition for certiorari as improperly granted, but should at the same time grant the petition that BLAG filed later in December. “This Court can grant the House’s petition in No. 12-785 and issue its merits decision in that case without need for further briefing and argument,” contends BLAG, since the questions presented in both petitions are the same and all parties will be arguing their cases to the Court on March 26. While this would be unusual, it does present a plausible roadmap for the Court to rule on the merits if it decides that DOJ’s agreement with the lower court’s decision would deprive the government, as represented by DOJ, of “appellate standing” to bring the case to the Court.
Thus, all the parties reject Prof. Jackson’s argument that because the Court lacks jurisdiction in this case, it should dismiss the petition and leave matters to further development in the lower courts. Nobody agrees that it would be preferable to let the issue of Section 3’s constitutionality play out without a definitive resolution for several years. All parties agree that the result would be potentially thousands of individual lawsuits burdening the federal courts until at least one case generates an adverse court of appeals decision that can be appealed buy the disappointed plaintiff. And each party argues that somehow an argument can be constructed that the Court has proper jurisdiction of the case so that it can rule on the merits. Nobody wants a delay in determining whether Section 3 is constitutional.