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Supreme Court to Hear Windsor Challenge to DOMA

Jim Burroway

December 7th, 2012

The Supreme Court announced that it has agreed to hear  U.S. v Windsor which challenges the constitutionality of Section 3 of the Defense of Marriage Act. The American Civil Liberties Union brought the case on behalf of Edith “Edie” Windsor, who was billed $363,000 in federal estate taxes after her wife died in 2009. The New York couple had married in Canada in 2007, and their marriage was recognized in the state of New York.

According to this afternoon’s Order List that was issued by the Supreme Court (PDF: 48KB/2 pages):


The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

The Bipartisan Legal Advisory Group (BLAG) took over the active defense of DOMA after the Justice Department announced that they did not believe that DOMA could survive a constitutional challenge under heightened scrutiny, the standard by which the Department argued that DOMA should be judged. Both the Federal District Court judge and the Second Circuit Court Appeals agreed with the Justice Department on both accounts: that DOMA should be examined under heightened scrutiny, and that under that level of scrutiny DOMA fails constitutional muster by violating the Equal Protection clause under the Fifth Amendment.

The added question about BLAG’s standing in the case is something of a surprise. As with the Prop 8 case — Timothy Kincaid has more on that here — the court has given itself an escape hatch to rule on standing without having to rule on the merits. As Lyle Denniston at SCOTUSblog explains:

It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

The court is expected to hear arguments sometime in March, with a final decision in June.



Jim Hlavac
December 7th, 2012 | LINK

I think the Scotus folks realize that if they decide only in the two cases very specifically, then the onslaught of cases will continue — there’s more in the pipeline already; more come everyday. And they don’t want to imply upfront that they will get rid of DOMA completely, and the little DOMAS if they can — so, the escape hatch, and the request for the entirety of the matter. I think the court realizes full well that we gay folks are not going to give up, ever. And they must weigh that, in a non-legal fashion, of course, with whether they want to hear DOMA and marriage cases for the next decade or more, every year — with more and more conflicting cases from lower courts, as the morass of not obeying the “full faith and credit” clause between states becomes apparent in the mishmash of some states with gay marriage and some without. Oh, give those poor nine a break; they’re not ready yet for the gay challenges; I doubt they even considered all the possibilities and want to know what they’re up against.

Thom Watson
December 7th, 2012 | LINK

If they decide based on standing, though, then don’t they end up creating the very sort of thing they exist to resolve, a situation where a federal law is annulled only in one circuit, but still applies to citizens in the rest of the country? That’s what confuses me about why they brought up standing in Windsor, but then only accepted one case rather than also accepting another in which standing might not be an issue. Are they willing to let a law be constitutional in some circuits but unconstitutional in others, just to punt having to make a decision? Especially given that DOMA doesn’t even require that any state recognize a same-sex couple’s marriage, I’m confused as to why they wouldn’t want to just address the issue at stake.

Thom Watson
December 7th, 2012 | LINK

After all, there are conservatives who accept that DOMA is an unconstitutional attack upon federalism. It shouldn’t be nearly as politically risky a decision for the court to make that they feel they have to avoid making it.

December 7th, 2012 | LINK

I think that since both cases are unique in their “standing” aspects that both will be decided to lack standing and thus limit the decision to the State of California and to Ms Windsors district. This will be a limited scope decision and they basicly telegraphed that they plan to punt.

December 8th, 2012 | LINK

“DOMA fails constitutional muster by violating the Equal Protection clause under the Fifth Amendment.”


The Fifth Amendment has no equal protection clause. The only such clause is in the Fourteenth Amendment which binds only the State goverments.

Do lawyers today even bother to read the Constitution, or do they just make it up as they go along? (That question was rhetorical.)

December 10th, 2012 | LINK

CLD, well, I think you might be both right and wrong at the same time. :) The thing is that literally if you look at what is in these amendments – you are right. But it seems to me that the way it has been read in practice was that the state-limiting equal protection clause of the 14th got expanded (based on the 5th) to limit the federal government/law. I might be wrong…

December 11th, 2012 | LINK

CLD, see also the text of the question to the SCOTUS:

Its says: “equal protection of the laws, as guaranteed by the Fifth Amendment”…

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