LGBT in OT 2012: The impact of a Supreme Court decision in Windsor v. U.S (part 1)

November 7, 2012

Supreme Court GLBT(Editor’s note: With the reelection of President Barack Obama and the legalization of same-sex marriage in three states during the same night, 2012 is shaping up to be a significant year for LGBT rights.  With many cases involving such rights seeking review before the Supreme Court, it may also be a significant term at the Court.  Throughout the month of November, Westlaw Insider will be looking at these cases, and how a Supreme Court ruling could impact the nation.)

Last week, I wrote about the eighth anniversary of the passage of constitutional amendments banning same-sex marriage in eleven states.

Since then, many other states have adopted such amendments via electoral ballot, and as of today, there are 31 state constitutional bans on same sex marriage (yesterday, my home state of Minnesota rejected such a measure, and it was the only state with a proposed ban on the ballot in 2012).

Considering that same-sex marriage was already illegal under state law in every one of these states, what is the point of having these constitutional amendments in place?

They prevent a state legislature from legalizing same-sex marriage without approval of the populace via a ballot initiative.

As I also mentioned in that Today in Legal History post from last week, however, a U.S. Supreme Court decision could have a major impact on these amendments.

Here’s how:

Such a Supreme Court decision would likely arise from Windsor v. U.S.,  a case out of the Second Circuit currently seeking review with the high court.

The facts of Windsor are as follows:

New York residents “Edie” Windsor and Thea Spyer were married in Toronto, Ontario, Canada in 2007; Spyer died in 2009.

Although same-sex marriage was not yet legal in New York at the time of Spyer’s death, the state did extend formal recognition of these relationships if they were performed in other jurisdictions.

Section 3 of the federal Defense of Marriage Act (DOMA), however, limited the definitions of “spouse” and “marriage” to apply only in heterosexual relationships.

Because of this, Windsor had to pay $363,053 in federal estate taxes that she would not have otherwise had to pay if not for DOMA.

The Second Circuit Court of Appeals ruled on October 18, 2012, not only that Section 3 of DOMA was unconstitutional, but also that homosexuals are a “quasi-suspect” class entitled to “intermediate scrutiny.”

This is a very big deal, since it requires the government to show that the law that discriminates against individuals based on their sexual orientation furthers “an important government interest” and is “substantially related to that interest.”

This all probably seems like legalese, but, in short, it means that the government has to have a really good reason for its laws that discriminate against homosexuals, and it further has to prove that the laws are “substantially” related to that reason.

Of course, this is assuming that the Supreme Court will both agree to hear Windsor and affirm it.

I predict that it will, and here’s why:

The Second Circuit’s ruling more or less conflicts with Baker v. Nelson, a 1971 Minnesota State Supreme Court case that, because of a procedural quirk, was effectively affirmed on its merits by the U.S. Supreme Court in 1972 even though the Court only said that “[t]he appeal is dismissed for want of a substantial federal question.”

Baker held that state laws that forbade same-sex marriages are not a violation of the Equal Protection clause.

The Windsor ruling got around this by arguing that, since “regulation of marriage is an area that has long been regarded as a virtually exclusive province of the States,” its analysis of the federal DOMA “is distinct from the analysis” found in Baker.

What the Second Circuit did here is essentially punt the issue of state restrictions on same-sex marriage by calling it a distinct issue when it is not (ever heard of the Fourteenth Amendment? – but more on that next week).

Quite honestly, though, this is a brilliant move.

Windsor’s opposition is unanimously – and very heavily – citing Baker in their briefs to the Supreme Court, claiming that the ruling forecloses her claim.

The Supreme Court loves to clear up ambiguities in its previous rulings, and – even more importantly – the current Supreme Court loves to take on the cases with hot button issues.

So that explains why the Court will likely hear Windsor, but why was the Second Circuit’s maneuvering around Baker “brilliant”?

First, it makes the case that much more likely to get in front of SCOTUS.

Secondly, the rationale may alleviate some fears that a ruling affirming the Second Circuit would instantly invalidate all of the state constitutional bans on same-sex marriage referenced at the beginning of this post.

That second point moves Justice Kennedy’s vote for upholding the Second Circuit from “likely” to “all but assured.”

The immediate impact of such a ruling striking down Section 3 of DOMA would grant federal benefits to spouses in same-sex marriages, but the eventual impact will be even greater.

More on that next week!

Click here for part 2.