The US Supreme Court recently gave a landmark decision in US v. Windsor holding Section 3 of the Defense of Marriage Act, 1996 (DOMA), which defines “marriage” as excluding same-sex unions, unconstitutional. Here’s a quick summary of the judgment. The full 77-page judgment is available here. The decision also contains some lessons for the treatment of homosexual conduct in India, as this post highlights at the end.
The case began with a tax dispute. Two women residents of New York, Edith Windsor and Thea Spyer, got married in Ontario, Canada in 2007. Their marriage was recognized in the state of New York. Spyer died in 2009 leaving her entire estate to Windsor. Windsor paid $3,63,053 as estate taxes but claimed a refund seeking federal estate tax exemption for surviving spouses. This is where the controversial legislation DOMA steps in. Because DOMA excludes same-sex partners from its definition of “marriage” and “spouse”, the tax refund was denied. Thereafter Windsor challenged the constitutionality of DOMA.
The District Court, the Court of Appeals as well as the Supreme Court declared Section 3 of DOMA unconstitutional. In a 5:4 majority decision, the US Supreme Court held DOMA as violative of the Fifth Amendment of the US Constitution. While the judgment also involved jurisdictional issues, I will deal only with the judgment on merits here.
The majority court noted that regulation of marriage has historically been within the authority of states. DOMA departs from the tradition of federal government deferring to this state authority. Although the statute does not prevent states from enacting laws allowing or providing benefits to same-sex marriages, DOMA holds a wide reach and extent by laying down a comprehensive definition of marriage for purposes of all federal laws. It affects over 1000 federal laws on various aspects involving marital status including social security, housing, taxes, crimi¬nal sanctions, copyright and veterans’ benefits.
The state of New York, by allowing same-sex marriages, confers dignity and protection on same-sex couples to enjoy their liberty. But the federal government has imposed restrictions and disabilities on them through DOMA. Fifth Amendment’s Due Process Clause protects liberty, which includes equal protection of laws. DOMA singles out and injures and degrades the very class of persons that the state considers entitled to recognition and protection, violating basic due process and equal protection principles.
The court observed that both purpose and effect of DOMA are to impose disadvantage, inferior status and stigma upon same-sex couples, whose marriage has been recognized by the state. Looking at the legislative history and title of DOMA, the majority noted that it is based on moral disapproval of homosexuality and aims to defend the heterosexual marriage institution. Further, the purpose of DOMA was to discourage state laws allowing same-sex marriages and to restrict the freedom and choice of lawful same-sex couples. DOMA treats same-sex unions deemed lawful by states as second-class marriages and also humiliates the children raised in same-sex unions. The majority concluded that the principal purpose and effect of DOMA are to impose inequality. And no legitimate objective overcomes this purpose and effect.
Thus, the court held that Section 3 of DOMA violates Fifth Amendment of the US Constitution. Notably, the court explicitly denied deciding whether DOMA’s intrusion violates the principle of federalism. The majority also cautioned that the judgment is confined to same-sex marriages that have been recognized as lawful by a state.
Four of the nine Justices expressed their dissents and held that DOMA is constitutional. The major points of dissent from the separate dissenting opinions are summarized here.
The judges pointed out that it is not clear what the majority’s conclusion of unconstitutionality is based on. There are three possibilities:
(1) Federalism. While the majority does refer to federal government’s departure from deferring to state authority, it itself denies basing its judgment on the grounds of violation of federalism.
(2) Equal Protection. If the decision is based on the violation of equal protection principle, the court has failed to address the basic issue of the level of scrutiny that must be applied to laws against same-sex unions. US equality jurisprudence provides three levels of scrutiny (strict, intermediate and rational-basis) that courts may apply to test the constitutionality of laws. The majority does not seem to apply any of these. Further, the court fails to appreciate the legitimate governmental interests behind this statute in ensuring stability and uniformity in the definition of marriage for the purposes of federal laws, especially in the presence of varying state laws on the status of same-sex unions. Relying on the title of the Act and snippets of legislative history, the majority strikes down the law based solely on its opinion of illicit legislative motive of harming a class of persons.
(3) Liberty and Due Process. The majority held that DOMA deprives liberty and violates basic due process principles. This suggests that the court used substantive due process, which protects rights and liberties deeply rooted in American history and tradition. The court did not assert that right to same-sex marriage is one such right. There is no constitutional right to same-sex marriages. Thus, this is a claim for recognition of new right from the judiciary, and deserves certain judicial restraint.
The dissenting opinions also highlight how this decision acts as a judicial invasion of democracy. The Constitution does not choose between opposing views on the institution of marriage. The dispute over same-sex marriages should be democratically decided by the people, acting through their elected representatives at state and federal levels, and not the court. The court casts the supporters of the traditional institution of marriage as bigots, wrongfully appropriating an important public policy debate.
Position in India
US v. Windsor inevitably reminds India of the pending decision from the Indian Supreme Court on an appeal against the Delhi High Court decision in Naz Foundation case. But there are important distinctions between the two disputes. The Naz judgment held unconstitutional Section 377 of the Indian Penal Code (IPC) that criminalized consensual sexual conduct between same-sex adults, appeal against which is pending before Supreme Court. There is a difference between homosexuality as an identity, homosexual conduct that IPC criminalized and same-sex marriages. The issue of same-sex marriage is yet to be dealt with by Indian courts.
While decriminalization may be an easier issue than same-sex marriages as it spares decision on questions on the institution of marriage, the Naz judgment does seem to be much more legally and constitutionally grounded that the majority opinion in US v. Windsor. Perhaps a bit more nuanced analysis could have at least saved the majority from dissenting Justice Scalia’s remark of the court’s opinion being just “nonspecific hand-waving”.