On 26 June 2013, the Supreme Court of the United States gave its judgment in US v Windsor concerning the 1996 Defense of Marriage Act (hereinafter “the DOMA decision”). Its legal peculiarities and potential significance no doubt mark a milestone in the US Supreme Court’s LGBT rights jurisprudence, and has very rightly commanded the attention from both within and outside the country.
Ms Windsor and her wife, both citizens of the state of New York, were legally married in Canada in 2007. Under the law of New York, they were conferred the same legal status as any other married couples, same-sex or different-sex. However, the operation of section 3 of DOMA – which defined “marriage” as confined only to legal unions “between one man and one woman as husband and wife”, and ‘spouse’ as “a person of the opposite sex who is a husband or a wife” – had meant that the married couple were in effect “derecognised” as such for federal law purposes. They were in consequence, on the basis of them being a same-sex couple, deprived of all the benefits (and indeed duties as well) provided for by federal legislations relating to marriage. Amongst these was the substantial estate tax Ms Windsor had to pay if she were to inherit her wife’s estate on the latter’s death.Suing the federal government for a tax refund, Ms Windsor argued that DOMA could not be constitutional.
In the first place, the procedural issues raised in this case are indeed unusual. Both Ms Windsor and the defendant Department of Justice of the US federal government (see Attorney General Holder’s Letter to Congress on 23 February 2011) agreed that section 3 of DOMA should be held unconstitutional under federal law. Nevertheless and unlike its sister case handed down on the same day (Hollingsworth v Perry), wherein the appellants were unconnected with the California government and could have suffered no injury arising merely from the knowledge of the legalisation of same-sex marriage, here the Department of Justice was held to have sufficient interest, given that the government’s intention to continue to enforce the impugned law was clear, and that at any rate Windsor’s success in the case would incur pecuniary loss on the part of the Treasury by having to repay the tax exemptions to which Ms Windsor would otherwise have been entitled. In consequence of the government’s reluctance to defend the constitutionality of DOMA, however, the task of adversarial argument in that regard fell, for “prudential” reasons, to be performed by an intervening group of anti-gay-marriage Congressmen (the Bipartisan Legal Advisory Group of the House of Representatives).
But it is of course the constitutionality issue that I am most anxious to consider. The majority of the Supreme Court, led by Justice Kennedy, started its inquiry by canvassing, at no small length, the constitutional allocation of authority in regulating private relationships between the states and the federal government, noting in particular the states’ historic sovereignty over the recognition of civil marriage (Windsor, pp 17-20). In this sense DOMA offends US federalism by purporting to disable the states from determining matters properly within their constitutional competence and the Court could conceivably have restricted itself to review the validity of the DOMA on federalist grounds alone.
Interestingly, the Court did not take that simple course. It elected instead to focus on DOMA’s onerous interference with the “dignity” and protection which the state of New York has explicitly enhanced for its homosexual residents by legalising same-sex marriage (Windsor, pp 18, 20. For a similar focus placed on the notions of dignity, self-determination and personal autonomy in European human rights law, see, for example, Pretty v United Kingdom, App No. 2346/02 (ECtHR, 4th Section, 29 April 2002) para 65). In so doing the Court ventured into the much more difficult and necessarily controversial waters of substantive constitutionality under the Due Process Clause of the Fifth Amendment (as fortified by the Equal Protection Clause of the Fourteenth Amendment (Windsor, p 24)).
Carrying out the Due Process/Equal Protection analysis (which is somewhat akin to the general proportionality test employed especially by the European Court of Human Rights), the Supreme Court was quick to point out that the only purpose of DOMA, as suggested by its very title, is “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law” and that its “principal effect [is]… to identify a subset of state-sanctioned marriages and make them unequal” (Windsor, p 22). As such DOMA effected a constitutionally unacceptable inequality based on which kind of marriage couples entered. This would financially burden and “[demean] the couple” and possibly also their children in an otherwise state-dignified relationship (Windsor, p 23-24). Having regard to both DOMA’s purpose and effect, the Court held that the Act of Congress amounted to the deprivation of essential parts of “liberty” without due process and in denial of the equal protection of the law, contrary to the Fifth Amendment, and accordingly must be struck down.
In reaching this undoubtedly welcome and principled result, the majority of the Court did not seem to have articulated the standard of scrutiny they applied in this case. This is understandable in part because, in any event, no real legitimate governmental interest had been invoked other than the illegitimate (in the majority’s view) expression of disapproval of homosexuality. This means that whichever level of scrutiny is applied, be it “rational basis”, “intermediate scrutiny” or “strict scrutiny”, the legislation would not pass constitutional muster under the due process and equality principles of US constitutional law.
While this may be a missed opportunity to strengthen the protection of sexual minorities, it is possible that the underlying reasoning of the majority judgment in Windsor could have wider general resonance, even beyond the context of marriage. The Court has importantly denounced the disapproval of homosexuality – as well as and maybe more significantly, the promotion of heterosexuality – as tantamount to debasement and degradation of same-sex couples. It may follow that these sentiments as a basis for legislation – often couched in terms of ”protecting family values” – will never be regarded as legitimate. All state and federal legislations purporting to serve such an aim, even if they do not touch on any aspect of marriage (and even more so if they do), will therefore also have to be rendered unconstitutional.
In effect, I think that the Court’s judgment is similar to that of the Appellate Committee of the House of Lords in Ghaidan v Godin-Mendoza, whose essence is aptly reflected in Baroness Hale’s typically elegant and erudite opinion, at para 143:
[A] homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple’s relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based upon their sexual orientation. It requires an objective justification if it is to comply with article 14 [of the European Convention on Human Rights, which protects against discrimination]. Whatever the scope for a ‘discretionary area of judgment’ in these cases may be, there has to be a legitimate aim before a difference in treatment can be justified. But what could be the legitimate aim of singling out hetero-sexual couples for more favourable treatment than homosexual couples? It cannot be the protection of the traditional family. The traditional family is not protected by granting it a benefit which is denied to people who cannot or will not become a traditional family. What is really meant by the ‘protection’ of the traditional family is the encouragement of people to form traditional families and the discouragement of people from forming others. There are many reasons why it might be legitimate to encourage people to marry and to discourage them from living together without marrying. These reasons might have justified the Act in stopping short at marriage. Once it went beyond marriage to unmarried relationships, the aim would have to be encouraging one sort of unmarried relationship and discouraging another. … The distinction between hetero-sexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to ‘everyone’, including homosexuals, by article 8 [which guarantees the right to respect for one’s private life] since Dudgeon v United Kingdom (1981) 4 EHRR 149. If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed, marriage-like homosexual relationships of the sort which qualify the survivor to succeed to the home.
In short, it is arguable that, on the basis of the reasoning of Windsor, it would be intrinsically incoherent under the US Constitution to seek to justify a difference of treatment of same-sex couples, “whom we now recognise as being members of the same family”, from their different-sex counterparts (Rodriguez v Minister of Housing of the Government & Anor (Gibraltar), para 27, per Baroness Hale). In those circumstances, a rational connection with a legitimate aim would, in principle, be lacking.