Several foreign countries, eight states, and the District of Columbia now permit gay couples to marry. Many gay couples who are New York domiciliaries have been married in these jurisdictions. New York recognizes these marriages, granting these couples equal protection under state law. As to federal law, these duly married couples have until now been denied the same protection under federal law.
On 23 February 2011, the Obama administration took a new legal position with respect to the 1996 Defense of Marriage Act (DOMA), in effect granting federal legal protections to married gay couples. Section 3 of DOMA states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
The administration’s position does not go to the issue of whether same-sex couples should be allowed to marry. Instead, the focus is on preventing federal discrimination against same-sex couples after they have been legally married.
Under this new approach, the burden of proof will now shift from a gay spouse or same-sex couple who challenges a federal statute to show that they are not prohibited under DOMA from making the claim and places the burden on the federal government to show that DOMA does not impermissibly discriminate against the gay spouse or couple.
Courts will now apply a heightened standard of legal review to cases involving DOMA. Since the passage of the law, courts have applied a legal standard of review called rational basis to all sexual orientation discrimination cases that concern federal issues. For instance, same-sex couples who sought equal protection of the law under the Fifth Amendment (the Fourteenth Amendment’s equal protection clause applies to the states) were generally denied equal protection so long as the government could state a rational basis for the existence of DOMA. The government almost always won a legal challenge under rational basis review because the challenger of DOMA had the burden to show that there was no legitimate purpose to the law and that the means used to enforce the law were not rationally related to its purpose.
But moving forward, the government will no longer defend the law under rational basis review. Instead, a heightened standard will used by the federal courts in cases involving DOMA. Henceforth, the burden will fall on the government to show that the law is substantially related to an important government objective. The government will base its position on the legislative record used to pass the law.
One case that will be affected by this new position is Windsor v. United States, No. 1:10-cv-8435, filed in U.S. District Court in the Southern District of New York on November 9, 2010. In the complaint, the plaintiff Edith Windsor seeks “a refund of the estate tax levied on a married same-sex couple, which would not have applied to a married straight couple, and which consequently violates the United States Constitution.” In 2007 Edith Windsor and Thea Spyer were married in Canada after an engagement lasting 40 years. Two years later, Spyer passed away as a result of complications from a heart condition.
26 U.S.C. § 2056(a) permits an unlimited marital estate-tax deduction that allows property to pass from a decedent spouse’s estate to the surviving spouse free of the federal estate tax. But because of DOMA, married same-sex couples are denied this marital estate-tax deduction that is enjoyed by every other married couple.
Both spouses had done extensive estate planning, each creating revocable trusts. According to the complaint, Edith “in her capacity as executor of Thea’s estate, filed a Claim for Refund and Request for Abatement (Form 843) and a Disclosure Statement (Form 8275) with the IRS on April 7,2010, stating that Edie and Thea were lawfully married in Toronto, that New York State recognizes that marriage under local law, and that DOMA unconstitutionally discriminates on the basis of sexual orientation. As a result, Edie argued, Thea’s estate is entitled to the marital deduction and to a refund in the amount of $363,053.00.” (Windsor, at 19).
The IRS replied and denied the refund because “under DOMA ‘… the words [sic] “spouse” refers only to a person of the opposite sex who is a husband or a wife’. Section 2056 is inapplicable because the surviving spouse is not a spouse as defined by DOMA (Id.).”
But under the new Obama administration position, the federal government will no longer defend the legal position articulated by the IRS. According to the letter from Attorney General Eric Holder to Speaker of the House John Boehner dated 23 February 2011, “heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.”
The net effect of the Holder memorandum is that the government will not file a motion to dismiss on or before March 11, 2011. The case will move forward with the government still a party in the case, but the court will be instructed to apply a heightened standard to the case, and to remove Section 3 of DOMA as a barrier to possible recovery in this case.
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