We are proud to introduce Prof. Ruthann Robson’s comment on United States v. Windsor as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For a discussion of this decision’s impact on immigration law, see Prof. Janet Calvo’s related piece.
Ruthann Robson*
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A landmark. A victory for “gay rights.” An example of judicial activism.
Each of these appellations is an accurate descriptor of the Court’s decision in United States v. Windsor, rendered on the last day of the 2012–2013 term. By a bare majority, the Court declared Section 3 of the Congressional Defense of Marriage Act (DOMA) prohibiting federal recognition of same-sex marriages unconstitutional. The Court resolved the threshold issue of whether it had Article III power to hear the case, given the unusual posture of the litigation, in favor of rendering a decision, unlike the outcome in the companion case of Perry v. Hollingsworth involving the constitutionality of California’s Proposition 8.[1] The Court’s reasoning included a discussion of Congressional power to pass DOMA, given that marriage and other family matters are generally within the province of the states under federalism as it has developed in the United States. Ultimately, however, the issue was not one of Congressional power. Instead, the majority concluded that DOMA’s Section 3 violated the equal protection component of the Fifth Amendment.
The facts underlying United States v. Windsor have been subject to much media attention. Edith Windsor is a sympathetic and charismatic plaintiff, aged 83 at the time of the decision, whose monetarily specific injury consisted of the $363,053 she paid to the federal government in federal estate taxes because of the non-recognition of her same-sex marriage to her deceased partner, Thea Spyer.[2] The couple had been married in Canada in 2007, and their marriage was recognized by their home state of New York when Thea Syper died in 2009, although New York itself did not itself license same-sex marriages until 2011.[3] Thus, except for the operation of DOMA Section 3, Edith Windsor would have been considered a “spouse” under federal law and entitled to the spousal exemption from estate tax.
