June 27, 2013.  Yesterday was a landmark day in America.  The United States Supreme Court ruled that a statute passed by a large majority of both houses of Congress (by 5:1 margins) and approved as law by President Clinton on subjects related directly to the operation of the national government was unconstitutional because it encroached upon the rights of the individual states to regulate matters of family law.  It is a fascinating decision and it features some fascinating dissenting opinions that merit careful thought.

The case involved a homosexual or lesbian couple who married lawfully in Canada.  They lived and one of them died in New York state, a state that does give recognition to a marriage formed by two people of the same sex.  One of the pair died and left a substantial inheritance to her married partner.  As most of us know, the United States taxes the estates of those who die possessed of wealth of a certain size and that tax is substantial.  If you are married at the time of your death, you may leave an unlimited amount of wealth to your spouse without paying any estate tax.  If you leave it to someone not your spouse, the estate tax is imposed.

In 1996 Congress enacted and the executive branch signed the Defense of Marriage Act.  In substance it provided that all of the benefit’s the federal government conferred upon married couples were not to be made available unless the couple consisted of a man and a woman.  When Thea Speyer died and left her estate to her spouse Edith Windsor the United States imposed $360,000 in estate taxes because, under DOMA, the government of the United States did not recognize their marriage even though Canada had sanctioned it and New York (their home state) had, by judicial decision and state executive order given recognition to these relationships.

Ms, Windsor paid the tax but sued for a refund claiming that DOMA deprived her of equal protection under the fifth amendment to the United States Constitution.  Put simply, Ms. Windsor contended that the government of the United States had no justifiable basis to discriminate between married persons of the same sex and married persons of opposite sex.  The trial court, which is to say the United States District Court in Manhattan agreed with Ms. Windsor and directed the Internal Revenue Service to refund the tax on the basis that the 1996 DOMA did discriminate based on sexual orientation without a sound basis to do so.  Even though the Obama administration announced that it actually agreed with the District Court, it filed an appeal nonetheless so that the case could be reviewed by the United States Circuit Court of Appeals.  The clear purpose was to secure appellate review of the case even though the government agreed with the taxpayer.  On October 18, 2012 a three judge panel of the Second Circuit Court of Appeals held that persons of the same sex who were married under state law were a “quasi suspect” class for whom heightened scrutiny would be employed in evaluating any statute that treated them differently than others.  This was the first cases in which a United States appellate court had defined people of the same sex as quasi suspect and that statutes subjecting them to differing treatment were subject to intermediate scrutiny.

The United State Supreme Court decided to hear the case in December, 2012 although their order granting review directed the parties to brief whether this was a true “case or controversy” since the executive branch had taken the legal position on appeal that Ms. Windsor was wrongfully discriminated against and entitled to her tax refund.

A side note.  On June 6 of this year the Pew Research Center for the People and the Press reported that for the first time, a majority of Americans favor same sex marriage while 42% continue to oppose it.  The study noted how quickly attitudes toward this change in a fundamental institution of life had changed in the past decade.

Nonetheless, despite what the public may think, the Congress has never repealed or modified this law.  In its decision on June 26, the Supreme Court affirmed the Second Circuit decision and held that DOMA effectively created contradictory legal approaches to the same relationship within one state and thus diminished the predictability and therefore, the stability of relationships that the State of New York had, decided to endorse.  The decision was 5 justice voted to affirm and 4 dissented.

For this writer, what we see in the Windsor case is a sound public principal erected upon a very suspect constitutional base.  Were I King, (an aspiration which has thus far been thwarted) I would get government out of the business of deciding who could be married and who could not. Anyone of any sexual orientation could register to be married and thus voluntarily subject themselves to state laws governing marriage and divorce based upon their own decision.  Moreover, I don’t think it can be lost on any thinking individual that while we pretend to celebrate marriage through legislation like DOMA, we have concurrently made divorce more easily available than ever before (at least during what we term the “Christian era”).

But the dissenting opinions of Justices Roberts, Alito and Scalia note that there are profound procedural and substantive defects with the reasoning of the majority opinion.  The procedural one has to do with what Constitutional scholars call the real case or controversy doctrine.  The original of the principle dates to the administration of President Washington when the administration asked Chief Justice John Jay for advice concerning a federal law.  Jay wrote in response that the Supreme Court was not an advisory arm of government but an adjudicative one where only real cases involving adverse parties would be heard.  In this case, the United States took an appeal from a decision which it said it agreed with (DOMA is unconstitutional) in the hope that appellate courts would sustain their view of the law even though the view of the administration was directly opposite that enacted by the people through their representatives in Congress.  In 1911 a unanimous Supreme Court ruled that it would not hear a case involving Indian affairs where the court found the two parties before the court were not adverse but merely seeking an advisory opinion.  Muskrat v. United States 219 U.S. 346.

On the substantive side the Court did not find this to be a case commanding strict scrutiny as in race and sex based bias. There, the discrimination has been positively legislated against. Ironically, whether one sees it for better or worse, Congress legislated for this kind of discrimination, just as it has in the past approved laws discriminating in favor of veterans, first time home buyers or a panoply of other classes.  In this case the Court majority has said this is an encroachment of states rights to regulate family relations.

Certainly, there is a long history of the United States government abstaining from involvement in cases involving child custody, divorce, support and adoption. * But, here, the United States was not attempting to pre-empt state law or otherwise undermine its effect.  In the case of Ms. Speyer’s estate, the government said only that because of the nature of their relationship, the Speyer-Windsor family was not eligible for a federal exemption from a federal estate tax.  If Ms. Speyer and Ms. Windsor had lived for fifty years together in a state of complete harmony but without the benefit of a Canadian marriage license, the tax would have been due and collectible.  If one wishes to argue that this form of discrimination is stupid, this author would wholeheartedly agree.  But can we really say that the federal government has wrongfully encroached upon a state’s rights to regulate the family relationship of its citizens by adopting legislation that imposes a federal tax on a state’s citizens.  Had DOMA held that New York could not recognize marriage by persons of the same sexual orientation, I join with a majority.  But in this case, while I “concur” with the result espoused by the majority, a constitutional subterfuge was employed that leaves me uneasy.

In the end, neither side really got what they wanted.  As the Wall Street Journal noted in its editorial this morning, what will become of the couple that marries in Hawaii while working for the United States government, only to be re-assigned by the government to a state that does not recognize marriages between same sex individuals?  Is it an act of discrimination for the government to make such an assignment because it will affect how the couple would be treated?

DOMA was an ill-conceived statute that merely pretended to “preserve marriage.”  It has now bred a decision that pretends to celebrate federalism and the rights of states to experiment this experiment will be one marked by continued confusion.

*     The Congress has successfully entered this area before with statutes like the Parental Kidnap Prevention Act 28 U.S.C. 1728; The Child Support Recovery Act 18 U.SC. 228; Adam Walsh Child Protection and Safety Act.

**. Another curiosity. Ms. Speyer and Ms. Windsor married in 2007 and Ms. Speyer died in 2009.  Ms. Windsor asserted her spousal exemption rights not under a state statute (that was not passed until June, 2011) but what amounted to an executive order issued by then Gov. David Patterson in May, 2008 following a case decided by a New York Appeals Court.  See Martinez v. County of Monroe 850 NYS 2d 740 (2008).