Leonardo Angiulo: What You May Not Know About The DOMA Decision

Monday, July 01, 2013

Leonardo Angiulo, GoLocalProv Legal Contributor

The Supreme Court's decision in United States v. Windsor to overturn the Defense of Marriage Act's (also known as “DOMA”) definition of marriage garnered some significant attention this past week. Newsfeeds were filled with commentary, radio stations covered it extensively, and newspapers placed it on their front page. Separate from various opinions about the ruling there was a single proposition offered: that DOMA had been ruled unconstitutional. This is, of course, correct but more often than not the coverage left out the legal principles this ruling was based on along with some interesting side notes raised in the opinion.

The facts

To start, let's have some facts. In the underlying lawsuit Edith Windsor filed an action for refund from the IRS based on the $363,053 she paid as estate tax after her same-sex spouse, Thea Spyer, passed away in 2009. The DOMA was implicated because its terms formerly lay on top of the United States Code and applied a hetero-centric definition of marriage to all federal laws that use that term. Specifically, Ms. Windsor filed suit claiming DOMA improperly prevented her from enjoying the federal estate tax exemption for surviving spouses in violation of the principles of the Fifth Amendment to the United States Constitution.

A majority of the court ruled in Ms. Windsor's favor, finding the effect of DOMA is to impose a disadvantage, separate status and stigma upon individuals who have entered into lawful marriages in their respective states. The court, evaluating the terms and application of the contested act, further determined this disadvantage to be the very essence and purpose of the act. The majority also opined that this Act was passed at a time before any state had recognized same-sex marriage with the purpose of ensuring that if any state did, the resulting unions would be treated as second-class marriages for the purpose of federal law.

GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLAST

And this, the court states, implicates the Fifth Amendment. By identifying a subset of state sanctioned marriages and making them illegal, the federal government was imposing inequality between same-sex and opposite-sex couples who were both claiming the same legal status through state laws that did not distinguish between them. In doing so, DOMA restricted rights and responsibilities as well as diminishing stability and predictability of basic personal relations that individual states found it appropriate to recognize and protect. And did so for the express, and improper, purpose of putting a thumb on the scales to influence states on how to shape their own marriage laws. The decision ultimately finds DOMA unconstitutional as a deprivation of the liberty of the individual protected by the Fifth Amendment and of the equal protection clause of the Fourteenth Amendment.

To end this discussion there, however, would be a disservice to the justices of this Court generally and to readers of this column.

There's more

First, in this case there was another argument because of the Executive branch making a very interesting decision at the beginning of this suit. According to the opinion of the Majority the President instructed the Justice Department not to defend DOMA in court, enforce the act's terms until the court ruled it didn't have to, and left it to a division of Congress to argue in support of DOMA if it chose. That division of Congress is known as the Bipartisan Law Advisory Group (also known as “BLAG”) and did, in fact, argue the case.

This, as explained in the majority's opinion, presented a significant procedural dilemma. While BLAG was ultimately permitted to join the suit as an interested party, that does not change the fact that the Executive Branch took an unusual position by not arguing to defend the law as it usually does. While many can understand that the current administration did not support the contents of DOMA, that opinion stands in contravention to the fact that for our system of governance to work there must be real adverse parties in order for the court to act as the final arbiter of constitutional questions.

In short, when everybody does their job we get the results our system is designed to deliver. If the Executive Branch were permitted to avoid defending laws at its choosing, based on political considerations of a given administration, as a common practice then the judicial review of those laws would effectively become secondary to the President's. This would as the majority states, effectively, allow a President to nullify an act of Congress on its own initiative and without determination by the Court. The court had to make a decision on the substantive issue presented because, otherwise, the result from the lower court would be inconsistent with the principle of separation-of-powers and at least 210 years of Supreme Court precedent stating that the Court holds the exclusive duty to say what the law is.

The dissent, authored by Justice Scalia, however, believes that simply because the Executive Branch failed to actively argue to dispute the facts of the instant case failed to create a legitimate issue for the Supreme Court to decide. Justice Scalia's opinion centers on the idea that the Court does not, in fact, say what the law is. Instead, in ruling on legal controversies, it accidentally interprets the law when it resolves disputes between parties. The dissent goes on to opine that evidence of a lack of dispute is contained within the brief for the Federal Government authored by the Solicitor General that advocated for the Supreme Court to rule against the United States. As Justice Scalia pointed out, there might not be another case in the entire Supreme Court's library where a petitioner, in this case the Executive Branch, asked the court to rule against them.

State's rights

Another interesting issue is the fact that, while the court's opinion did a thorough job in explaining why DOMA violates the Constitution, its decision was based on the concept that individual states have the exclusive authority to define marriage for their own citizens. In doing so it is a case that heartily advocates for State's rights. Moreover, as Chief Justice Roberts points out in a separate dissent, nothing about this decision affects whether, or not, the individual states may continue to to utilize the traditional definition of marriage. In fact, the Chief Justice hints that the language of the majority highlighting the autonomy of individual states will be used in other cases in the future. What this will mean, however, can only be answered by those subsequent decisions.

In the end, there are many people in the United States who now have a little more certainty in what their marriage means. There are, however, some important questions that remain unanswered. Including what rights people living in a state that does not recognize same-sex marriage can claim having been legally married in a state that does.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com.

Related Articles

• Smart Benefits: Gay Marriage Ruling + Employer Compliance
• Leonardo Angiulo: Aaron Hernandez Should Probably Lawyer Up
• Leonardo Angiulo: How Much Privacy Did You Lose Last Week? A Lot.
• Leonardo Angiulo: MA Court Takes Hit of Justice in Marijuana Rulings
• Leonardo Angiulo: This Is Our City, You Play By Our Rules

Enjoy this post? Share it with others.