Politically Thinking by Eric Davis: Same-sex marriage ruling in the works

The U.S. Supreme Court will hear arguments in the spring in two same-sex marriage cases. The first involves the constitutionality of California’s Proposition 8, the referendum that overturned a California Supreme Court decision making same-sex marriages legal in that state. The second, which could have significant implications for Vermont, involves the constitutionality of the Defense of Marriage Act, or DOMA, the 1996 federal statute that defines marriage in terms of federal law as the legal union of one man and one woman.
DOMA was challenged in federal court in New York by Edith Windsor, who had lived in a committed relationship with Thea Spyer since the 1960s. Described as a “feisty and delightful lesbian couple,” Windsor and Spyer were married in 2007 in Ontario, where same-sex marriages had been legal since 2003. Spyer died in 2009 and left the bulk of her estate, which was valued at several million dollars, to Windsor. At the time of Spyer’s death, both the executive branch and the courts in New York recognized same-sex marriages performed in other jurisdictions, even though New York itself did not legalize same-sex marriages until 2011.
Under New York state law, Spyer’s bequest to Windsor was treated as a transfer of assets from one spouse to another. However, because of DOMA, the federal government did not recognize Windsor as Spyer’s spouse. Thus, the IRS treated the bequest as a transfer of assets between strangers, and assessed Windsor an estate tax on the bequest from her spouse. Windsor paid the tax — more than $300,000 — and then sued the federal government for a refund, claiming that DOMA unconstitutionally discriminated against same-sex couples who were legally married under the laws of the states of which they were residents.
Both the trial court and the Court of Appeals for the Second Circuit ruled in favor of Windsor. The Second Circuit rejected the arguments that were advanced in support of DOMA — that Congress could establish a uniform definition of marriage that would apply nationally, even if individual states had a different definition; that such a definition was needed to protect the public purse against applications for benefits and tax preferences from same-sex couples; and that DOMA was needed to encourage “responsible child-rearing and procreation.”
While the Windsor case was making its way through the federal courts, President Obama directed the Justice Department to cease its defense of DOMA before the judicial branch. The defense of the statute was taken over by an entity called the “Bipartisan Legal Advisory Group,” acting on behalf of the Republican majority in the House of Representatives. 
Even though the Second Circuit’s ruling in the Windsor case is consistent with the administration’s current position on DOMA, the Justice Department asked the Supreme Court to review the case, presumably to get a ruling on DOMA that would apply nationally, not just to the three states in the Second Circuit — New York, Vermont and Connecticut. (The First Circuit Court of Appeals, covering the rest of New England, has also ruled DOMA unconstitutional.)
There are thousands of same-sex married couples in Vermont. If the Supreme Court upholds the Second Circuit’s ruling in the Windsor case, these couples will become eligible for many advantages that federal law grants to married persons, but are denied to these Vermonters because of DOMA. These advantages include being able to file joint federal income tax returns, being eligible for Social Security spousal benefits and being eligible for spousal survivors’ and health benefits for members of the military, veterans and federal civilian employees.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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