Constitutional Challenges to DOMA

In the past several years, six states have legalized gay marriage within their jurisdiction.  However, the Defense Against Marriage Act (DOMA), a federal law, is preventing many of these same sex couples from benefitting from the rights of these state passed laws.  The Second U.S. Circuit Court of Appeals however is ready to hear arguments that portions of DOMA are unconstitutional and discriminate against gay couples.

This case was brought by Edith Windsor who married her partner in Toronto, Canada in 2007.  Shortly thereafter, Ms. Windsor’s partner died leaving her entire estate to Ms. Windsor.  As federal law did not recognize their marriage as valid, Ms. Windsor was assessed with estate taxes of $363,000.

However, Ms. Windsor’s attorneys state that this federal law is unconstitutional as it violates the 14^th Amendment, which guarantees equal protection under the law.  Previously in June, a federal district court agreed with Ms. Windsor’s attorneys and found a central provision of DOMA to be unconstitutional.  President Obama’s administration has also stated that they believe DOMA to be unconstitutional would no longer defend the law.  However, “a group appointed by the Republican majority in the U.S. House of Representatives is defending the law in courts across the country.”  The Court of Appeals has expedited review of this case due to Ms. Windsor’s health; Ms. Windsor has also asked the United States Supreme Court to review the case before the Court of Appeals hears it.

Previously, only one other federal appeals court has ruled on the issue; the First Circuit Court in Boston found in May that “found a central provision of the Defense of Marriage Act unconstitutional for denying federal benefits to same-sex couples married in states where such unions are legal.” In California and Connecticut, federal district courts have also ruled against the law.  Four other cases are currently pending before the Supreme Court of the United States; “[t]he Justice Department has filed petitions in all four cases, asking the high court to review the constitutionality of the law's definition of marriage.”

It is understood that where state and federal law both speak to the same issue, federal law preempts the state law.  However, in this case at least three courts have held provisions of DOMA to be unconstitutional and the current administration has no interest in defending the law.  Six states have battled to legalize same sex marriage in their jurisdictions; these battles will be for nothing if DOMA is allowed to preempt state provisions.  Until the Supreme Court hears one of the cases on this issue, and as such rules on the constitutionality of DOMA, same sex couples will never be sure as to what their state given rights really guarantee them.

More information on this case can be found in this article.