Supreme Court Strikes Down DOMA: Summary and Analysis


This turned out to be a nonissue, as it should have been. The first problem: The Obama Administration, which thinks DOMA is unconstitutional, won at the Second Circuit. So, if it won, how could there still be a "case or controversy" — to use the Constitution's words — that the Supreme Court could hear?

Every case in a federal court has to be real, it has to be alive, it has to have an injured party and another party arguing against it. The no-jurisdiction crowd was arguing that there is no controversy because the government agreed with Edie that DOMA was unconstitutional.

Kennedy was correct to argue that there was jurisdiction to hear the appeal because regardless of whatever opinion the Administration took on DOMA, it was still on the hook for the $350,000 bill that the district court ordered the government to pay back to Edie Windsor. It was, in Kennedy's words, a "real and immediate economic injury." That is enough to keep the case going.

The adversarial requirement was met because House Republicans spent over $2 million to hire a famous lawyer and defend DOMA every step along the way. The Court acknowledged that this case was unique — the Executive does not normally back away from defending federal laws. But House Republicans' "substantial adversarial argument" lightened the Court's concern and assured the justices that a real case was before them.

So now we can move closer to the heart of the matter.


But first we have to deal with how the Court looked at DOMA. Remember my hurdle analogy: Scrutiny levels are like hurdles on a track — if you want every runner to pass the hurdles test, you're going to keep the hurdles pretty low; if you want only the best hurdlers to pass, you're going to keep the hurdles high. Same thing with scrutiny: it refers to how the Court assesses the constitutionality of a given law. The lower the hurdle, the easier it is to pass constitutional muster.

The dissent wants "rational basis", the lowest of the low. But even Scalia acknowledges that what the Court used was something higher, a greater "careful consideration" that reminds us of what law students know as "rational basis plus" or "rational basis with bite." It's not quite the heightened scrutiny that we and the Obama Administration wanted, but it is a lot higher than rational basis.

The standard was used in Romer and, it seems, in Lawrence. It is unique to laws that discriminate on the basis of sexual orientation.

DOMA failed this still relatively low standard and, in that way, we are victims of DOMA's utter irrationality. We hoped for a heightened scrutiny standard, but because DOMA was so bad, so unnecessary, and so obvious an attempt by Congress to harm gay people, heightened scrutiny was unnecessary. This issue will linger.

KennedyDue Process and Equal Protection

This is the heart of the opinion and it reads like the homages to equality and due process rights in Romer and Lawrence. In those cases, the Court made clear that Congress or a state legislature or any government actor cannot burden or harm a minority or disadvantaged group simply out of a bald desire to do harm and to institutionalize the disadvantages. Criminalizing sodomy was an example (Lawrence), so was taking away the political rights of gay people (Romer). In today's decision, Justice Kennedy returned to that theme and said that the Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify discriminating against that group.

Kennedy called DOMA an "unusual deviation" from traditional marriage law (see below, "Federalism) that not only deprived gay couples of all the federal benefits of marriage, but had the "purpose and practical effect" of reinforcing the "disadvantage." It created a "special status" that was unjustified. And it imposed a "stigma upon all who enter into same sex marriages." This was not simply a negative unexpected effect of DOMA; rather, "it was its essence." DOMA was bald discrimination and there is nothing that Kennedy (and the Constitution) hates more.


Kennedy does like state's rights, however, and his concern for federalism peeked through quite a bit. The holding — the crux of the legal significance of this opinion — was all about equality and due process, exactly what we had hoped. But part of what proved to the Court that DOMA was so repulsive and anathematic to those principles was its offensive disregard of state exclusivity on marriage law. Because Congress took the "unusual" step of defining marriage for the first time, the Court took a special careful look at what Congress was doing. In that way, Congress' boldness and its honesty about its discriminatory purpose was part of its downfall.

The Importance of Marriage

When you read between the lines and go beyond the headline that DOMA is unconstitutional, you start to ask yourself, "How can we use this case in the future?" There are many ways, but for now, I would like to highlight one. Marriage, Justice Kennedy said, is being granted by the states to gay couples and in making that decision, the states are conferring "upon them a dignity and statue of immense import." He goes on to talk (albeit briefly, especially as compared to myriad homages to marriages in other Supreme Court opinions like Griswold) about the extreme weight and power of the institution of marriage and the importance of a state saying to gay couples, "You are equal!"

Kennedy, therefore, is acknowledging that marriage is more than a series of benefits and numbers and tax refunds. The holding in Windsor may only specifically refer to those benefits, but much of Kennedy's greater message is about the importance of marriage. Look for these words, which we will discuss in greater detail in the coming weeks, to be the focal points of our fights for marriage in the courts for the coming years.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for
Information Law and Policy and a professor at New York Law School and is
concurrently getting his PhD at Columbia University in New York City.
He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Anon says

    I think the Windsor majority failed to find heightened scrutiny because they defined the suspect class very narrowly. The class Kennedy spoke to was only those same-sex couples married in states that permit same-sex marriage. It seems like they intentionally tried to side-step the question of scrutiny.

  2. Danny says

    So what I’m not hearing about is how the DOMA ruling is going to affect married same-sex couples residing in states that do not recognize their unions. For example, my husband and I have moved from Vermont, where we’re legally married, to Texas (where we’re originally from) for financial and extended family reasons. We plan to be here for a couple of years before returning to the northeast. Will we be able to file our federal taxes together while we’re living in Texas? What if, god forbid, one of us died while we’re still living here? Would the surviving partner be able to receive Social Security benefits?

  3. Anonymous says

    I have the same question, and am in the same situation, as Danny. For those of us legally married in states that recognized it, but then moved to a state that doesn’t, do we still get all of the Federal benefits, such as joint tax filings?

  4. Jesse says

    So at least those binational couples aren’t completely screwed anymore. Clearly a huge burden, but a trip to a gay marriage state can now eliminate a lot of troubles…

  5. Jesse says

    So at least those binational couples aren’t completely screwed anymore. Clearly a huge burden, but a trip to a gay marriage state can now eliminate a lot of troubles…

  6. E says

    Kind of similar question to Danny and anon: so, if you live in a state that has an “everything except marriage” type of civil union, are you denied federal benefits simply because your union isn’t called a “marriage”?

  7. Chuckles says

    RE: No heightened scrutiny.

    Note that the class at issue was not “homosexuals” or “gays and lesbians”, but validly married same-sex couples. That made it easy to avoid broad implications for the level of scrutiny required for statutes affecting LGBT.



  9. anon says

    Was the law struck down entirely or in part? If entirely then the states would be obligated to recognize out of state same-sex marriages.

  10. NullNaught says

    Thank you very much, Mr. Waldman, and Towleroad, for these articles. I know nothing of the law formally, but you make me feel as if I can understand what is happening.

  11. MickleSt. says

    Did Edie Windsor also sue for Social Security survivor’s benefits? A good friend lost his husband a little over a year ago. They were legally married in New York at the time of death. Will the surviving spouse now be able to receive his husband’s Social Security? He could really use it.

  12. Hey Darlin' says

    I, like others, live in a state where same sex marriage is not recognized, in fact the definition of marriage as one man and one woman is in our state constitution. What happens if we marry in a state that recognizes same sex marriage and then come to our home state? I think there needs to be a bit of clarification for us that are in between legally and illegally married.

  13. UFFDA says

    So nice to see this man speak his clear and beautiful mind, and to note that he specifically invites us to stay with Towleroad for further updates. What a day, what a website.

  14. DavidR says

    Here are the transportability questions I see (along with some informed, but certainly not definitive answers from me):

    Legally married in some US state:
    a. Live in a non-marriage state with NO state constitutional
    b. Live in a non-marriage state WITH a state constitutional
    c. Live in SSM state, but travel to (a) or (b)

    My best understanding is:
    1. If you’re legally married anywhere, then you are married for ALL FEDERAL purposes, including taxes. You can refile your taxes back to your marriage date, or even back to your DP date, whichever is first.

    2. If you’re in a state that doesn’t have SSM, but also has no law against it (say, NM), your marriage should be recognized.

    3. If you’re in a state that outlaws SSM, you may be screwed until the constitutionality of that is tested against the full faith and credit clause (Article IV, Section 1) is ruled upon.

    Anyone have a different understanding or better, more detailed info?

    I live in WA state, legally married, but my son and I are traveling to OR in two days. They recognize my husband’s and my DP, but they have a const. amendment against SSM, so I think they can still ignore our marriage. GRRR. Since our son’s birth mother lives in OR, we’d like this clarified. [I’ll still carry all the paperwork during travels.]

  15. Kevin_BGFH says

    I am not an attorney, and everyone with a specific legal situation should consult an expert in their jurisdiction. And there will probably be all sorts of interpretations coming out of federal agencies for how to handle. That said, this is my understanding:

    @Danny – My understanding is that your marriage is recognized by the federal government but not the state of Texas. You’d file joint married federal taxes returns, but single returns for the state of Texas (which might require creating dummy versions of the federal returns — the inverse of what couple in Massachusetts and other states had to do, where they filed as single under federal law and then created dummy federal married returns for the purpose of doing state tax returns).

    @E – I believe that Civil Unions are not recognized by the federal government. However, if you traveled to another state to get legally married and then returned to your civil union state, your other-state marriage would still be recognized by the federal government.

    @Anon – I believe only the part of DOMA involving federal recognition/benefits was challenged, and only that part was overturned. The part dealing with other states’ recognition was not challenged, not addressed in the ruling, and currently remains intact.

  16. Rich says

    Well explained, Ari. And I understand that there are many questions left unsettled by Windsor. Among them, if a couple marries abroad, does US Federal recognition of their marriage depend on recognition by their state?

  17. Luke says

    Ari–help! I don’t understand: Why did Sotomayor dissent on Prop 8? — Jeff NYC
    Jeff, I think that Sotomayor dissented in the Prop 8 opinion because she wanted to have the matter heard and ruled on; recall that the case was thrown out on technical grounds (lack of standing because the State of Calif did not bring the challenge) and therefore the District Court’s opinion that Prop 8 was invalid now stands which means that gay marriage is legal in California. It’s a pretty safe bet that Sotomayor wanted a ruling that anti-same sex marriage laws are unconstitutional as they violate both equal protection and substantive due process. Such a ruling would apply nationwide by law, whereas the District Court opinion can be rejected by other circuits and even by other judges within Judge Vaughan’s district. She probably reasoned that she had the votes in the companion DOMA case and that the 5-4 split would line up the same in the Prop 8 case. She may or may not be right because one never knows how Kennedy would rule, and I suspect Ginsburg, Kagan, and Breyer didn’t want to take that risk.

  18. Brent says

    We were married in Canada. Our state has a constitutional ban on same sex marriage. Will our marriage be federally recognized now?

  19. Neil says

    @Danny – As I understand it, federal taxes are complicated because the the IRS bases their rules on whichever state you live in, not the one where you got married in. Other federal agencies don’t do it this way. A series of presidential orders could make this more straight-forward and it sounds like Obama is willing to do those, but it could get complicated.

    @Anonymous – the only part of DOMA that was struck down is the part defining marriage as between a man and a woman. The part not requiring states to recognize other states’ marriages still stands.

    @Ari – I’m also wondering about how couples married outside of the U.S. will be treated by U.S. federal laws following this decision.

    I’m in a more complicated relationship myself. Under Quebec law (where we live), we are considered “de facto spouses” in a “de facto union.” Under Canadian federal laws, we are “common-law partners.” In both cases, we are treated the same as a married couple for income tax purposes, but Quebec uses the civil code rather than the British common law tradition. “Under existing Quebec law, partners in a de facto relationship have no rights, duties and responsibilities to each other — no matter how many years they’ve lived together.” This was recently tested by the Supreme Court of Canada and found to be valid.

  20. Rexford says

    Happy day, but really sad that Roberts joined in the dissent, and especially upsetting that he tagged on to Scalia’s hate-filled diatribe.

  21. JohnAGJ says

    I’ve been at work since early this morning so am a bit exhausted right now to celebrate, but I was able to catch some of the news on the run. I just have no words to express how I feel right now. Perhaps it’s the exhaustion of being up since 2:30 AM (it’s 5:35 PM now), but I feel a quiet happiness right now. I despaired of ever seeing this day in my lifetime and am pleasantly surprised. To everyone who helped make this possible: thank you!

  22. DannyEastVillage says

    this is a little off-topic, but I’d give a lot of money to know how Scalia refers to Thomas behind his back.

  23. DB says

    Hallelujah! This is the most important pro-marriage ruling since Loving v. Virginia legalized inter-racial marriage in 1967. On a practical level, my husband and I can finally switch from filing taxes jointly in California and separately federally and just file jointly for both state and federal taxes.