Defense Digest, Vol. 19, No. 3, September 2013

U.S. Supreme Court Pulls the Plug on DOMA and Opens the Floodgates to Litigation

Key Points:

  • Same-sex couples are now a protected class under federal law.
  • Defense of Marriage Act struck down as unconstitutional.


The phrase “all men are created equal” is described as a self-evident truth in our national Declaration of Independence. Conceptually, political and economic equality has required the thought and analysis of our high court to declare what those words actually mean: that “men” includes “women” and “equal” is just that.

To create equality where none existed previously, federal legislation opened doors for persons of opposite genders, among others, to compete in the workplace, education and sports by leveling the playing field between those who have for centuries enjoyed the rights and privileges of federal laws and those who have not. The “have-nots” eventually became known as the “protected class,” and as such, they became equal, by operation of law, to the “haves.” Consequently, much litigation arose in an attempt to enforce the operation of law where there was, and still remains, resistance. For attorneys, the expansion of civil rights typically means busier times ahead.

Recently, the United States Supreme Court published two opinions that expand the "protected class" and open the door to same-sex couples to enjoy the same civil rights and privileges as heterosexual couples under federal law. Section 3 of the Defense of Marriage Act (DOMA) has been stricken as unconstitutional. The offending provision of the Act, as it stood, affected approximately 1,000 other federal statutes and regulations with its official definition of marriage as the legal union between a heterosexual couple. DOMA had the effect of closing the door to same-sex couples requesting federal benefits and privileges.

In Hollingsworth v. Perry, No. 12-144 (U.S. June 26, 2013), the United States Supreme Court granted certiorari to decide whether or not a recently enacted California law, known as Proposition 8, passed constitutional muster. Proposition 8 was a voter referendum that reflected voters’ preference to keep the state definition of marriage to the union of two persons of opposite sexes. A same-sex couple challenged the constitutionality of Proposition 8. Government officials elected not to defend. Two staunch proponents of Proposition 8 obtained court approval to substitute themselves as defendants. Following a bench trial, the law was declared unconstitutional. The defendants appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit overruled the plaintiffs' challenge to the defendants’ standing to prosecute the appeal and their argument that, technically, the proponents of the law could not stand in the shoes of the government. Following the appeal, the Ninth Circuit affirmed the trial court, declaring Proposition 8 unconstitutional. On further appeal, the Supreme Court affirmed the lower courts' finding that the petitioners lacked standing and, on the merits, agreed that the state law was unconstitutional.

In a second decision styled United States v. Windsor, No. 12-307 (U.S. June 26, 2013), the Court granted same-sex couples equal rights to federal benefits that have been traditionally enjoyed by heterosexual couples. In Windsor, a lesbian couple was married in Ontario, Canada, and resided in the state of New York. Windsor, the surviving spouse of her deceased partner, filed a request with the IRS for a refund of over $350,000 in paid inheritance taxes. Her request was denied on the basis of the Defense of Marriage Act, which defined marriage as a legal union between heterosexual partners. Windsor filed suit, challenging the constitutionality of that section of the law, claiming it violated the Equal Protection Clause of the Fifth Amendment.

In circumstances similar to that which occurred in Hollingsworth, the U.S. Attorney General elected not to defend. But an interested group of individuals in favor of DOMA—Bipartisan Legal Advisory Group of the House of Representatives (BLAG)—sought permission to substitute as parties to defend the action. Both the trial court and the Second Circuit Court of Appeals allowed the substitution, but found in favor of Windsor on the merits, and ordered the Treasury Department to send the refund. On further appeal, the Supreme Court granted certiorari, and another opportunity to declare the law on the issue of whether or not a piece of legislation could create a blockade to benefits against same-sex couples. Unlike Hollingsworth, the Windsor case forced the Court to look at the constitutionality of a federal law as it applied to same-sex couples and to overlook the standing issue wrought by the substitute defendants.

In an interesting twist, the Court reasoned through the sound arguments of Windsor’s counsel that BLAG did not have standing to appeal, observing that an Article III jurisdictional analysis was only part of the analysis. Prudential considerations in this case “outweighed the concerns underlying the usual reluctance to exert judicial power.” Plainly stated, the issues at stake were too important to deny the appeal for lack of standing.

The Court went on to observe that states have always enjoyed the power, dignity and status to govern and regulate issues of domestic relations. But DOMA took away that power when it adopted the Dictionary Act's definition of marriage. Criticizing the law, the Court reasoned, “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper... DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” In an effort to reverse the effect of the overreaching federal arm, the Court struck down the section of DOMA that relied on the traditional definition of marriage, declaring it unconstitutional as offensive to the equal protection clause of the Fifth Amendment.

For those federal practitioners who handle claims of unlawful discrimination, be prepared. The floodgates are opening. Currently, the focus is on revising federal legislation to offer direct privileges and benefits to families, now redefined to include same-sex couples. Eventually, the tide will likely bring in more constitutional claims under Title VII, 42 U.S.C. §1983, and the due process and equal protection clauses of the Fifth and Fourteenth Amendments.

*Sharon, a shareholder in our Harrisburg, Pennsylvania, office, can be reached at 717. 651.3503 or


Defense Digest, Vol. 19, No. 3, September 2013 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.