Congress Claims ‘Rational Basis’ for Challenged DOMA Restriction
by Mark Hamblett
Congress has fired back in a lawsuit challenging the constitutionality of the Defense of Marriage Act’s definition of marriage as between one man and one woman.
In a motion to dismiss in the Southern District, former solicitor general Paul D. Clement and his legal team argue that the act, 1 U.S.C. §7, is entitled to a presumption of constitutionality, and that U.S. Supreme Court precedent holds that an exclusively heterosexual definition of marriage does not offend the equal protection clause.
The motion came in Windsor v. United States, 10-cv-8435, which was brought by Edith Schlain Windsor, who was forced under federal tax laws to pay $363,000 in estate taxes on the assets left to her by her partner, Thea Clara Spyer, despite the fact that New York state recognized their 2007 Canadian marriage.
Under federal tax law, a spouse who dies can leave assets to the other spouse without incurring estate taxes. Ms. Windsor claims the Defense of Marriage Act (DOMA), by refusing to recognize same-sex marriages, violates the equal protection principles of the Fifth Amendment.
The Obama administration announced in February that it would no longer defend §3 of the act because it believes that classifications based on sexual orientation should be subject to “heightened scrutiny” and the exclusion of same-sex unions would fail that examination (NYLJ, Feb. 24).
By a narrow vote of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), Congress jumped in to defend the law and retained Mr. Clement, then of King & Spalding, now of Bancroft in Washington, D.C.
In his papers yesterday, Mr. Clement said that rational basis review, not heightened scrutiny, is the appropriate standard in judging the constitutionality of the statute and §3 “easily” passes that less exacting standard.
In support of that view, he argues that DOMA does not infringe on the fundamental right to marriage, that “same-sex marriage is not a fundamental right” and that “DOMA implicates federal benefits, not the right of same-sex couples to marry.”
Under the rational basis test, Mr. Clement said, Congress could have acted rationally “in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution,” and it could have acted rationally to “protect the public fisc” in the balance it strikes in allocating federal burdens and benefits, and providing “consistency in eligibility for federal benefits based on marital status.”
Congress also could have acted rationally “to avoid creating a social understanding that begetting and rearing children is not inextricably bound up with marriage” and to “foster marriages that provide children with parents of both sexes.”
Finally, Mr. Clement states “any redefinition of marriage should be left to the democratic process.”
Mr. Clement’s motion was accompanied by an answer to a summary judgment motion made in June by lawyers for Ms. Windsor (NYLJ, July 12), led by Roberta A. Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, James D. Esseks of the American Civil Liberties Union and lawyers with the New York Civil Liberties Union.
In their papers, Ms. Windsor’s lawyers said the issue was straightforward: should the government be allowed “to levy a substantial estate tax upon Edie Windsor simply because, as a lesbian, she was married to a woman, instead of a man.”
Ms. Windsor’s team also cited the long history of discrimination against lesbians and gays, said that sexual orientation is an immutable characteristic that has no bearing on the ability to contribute to society, and said it was “impossible to credit” the contention that the law was “crafted by Congress to promote childrearing by heterosexuals.”
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In their papers, Ms. Windsor’s lawyers said the issue was straightforward: should the government be allowed “to levy a substantial estate tax upon Edie Windsor simply because, as a lesbian, she was married to a woman, instead of a man.”
Yes because their marriage was not a real marriage and did not conform to federal marriage law. Had they obeyed the law in the first place there would be no penalty. The federal government is allowed to levy this tax because under federal law they are two seperate single people living together.
that sexual orientation is an immutable characteristic that has no bearing on the ability to contribute to society, and said it was “impossible to credit” the contention that the law was “crafted by Congress to promote childrearing by heterosexuals.”
In the court of law the burden of proof is on the person making the claim. When you are a defendent the state must prove that you are guilty not you prove that you are innocent. The ACLU and the homosexual advocates have no proof that homosexuality is a gene characteristic. It is a choice freely made by the participants in that behavior.
That also have to prove the second point and have nothing there also. The law was indeed crafted to promote childrearing by heteosexuals otherwise the federal government would not have bestowed reproductive incentives into the law.
It should have to be a bona fide marriage that truly united the couple as one flesh, a coverture that made them the same person legally, so that there is no change of ownership when one spouse dies. The other spouse doesn’t inherit, the other spouse just continues to own.
To be a bona fide marriage, the couple must have sincerely given each other their procreative potential, even if they happen to know that it is unlikely to happen. So unless they consummate the marriage with good faith sexual intercourse or at least try to, I think they haven’t become one flash and thus shouldn’t be allowed to pass on property without paying the same estate tax that unmarried people pay. Getting married shouldn’t be a tax dodge, that’s not a bona fide purpose of marriage. (But I am not sure why estates are taxed at all, I gotta admit.)
One wonders why Ms. Windsor, who apparently had very substantial resources, didn’t create a trust or any other arrangement commonly used by people of considerable wealth to avoid estate taxes.
Leo, there is no way to avoid estate taxes, except through marriage. She was married. The federal government doesn’t say she isn’t married, but chooses not to recognize her marriage, because the current federal policy is that gay people are icky.
Great point Leo. All she had to do was seek an attorney and settle her estate. It was her responsibility to know that federal law established marriage as a union of one man and one woman. Therefore she was not married and her and her partner in the home had to be treated like two single adults. This is very similar to when a grown up daughter lives with her mother or an adult son lives with his father. Since these same sex couples are not married under federal law it is the responsibility of the family members to address the status of their estate through an attorney.
Lack of personal respnosibility on Ms. Winsors’s part does not create a right to SSM on the federal level.
@Sean Ah the victim card again. No one says “gay people are icky.” I’ve never, ever heard that or read that. Homosexual behavior is indeed “icky,” but that is behavior, not people. Her “marriage” wasn’t marriage because it takes members of the opposite sex to be a marriage.
@Sean
If you have a substantial estate, I recommend googling “how to avoid estate taxes.” You do not have to be married to create a trust. Anyone who has a large estate, regardless of sexual orientation, should have a competent legal adviser if they wish to avoid or minimize estate and other taxes. Of course, the government needs the money to cut the deficit, so the government getting the money is not necessarily or entirely a bad thing. Federal tax policy discriminates against rich people and taxes them heavily (aka progressively). Sean could just as well argue that federal tax policy is that rich people are icky. Do you agree that such discrimination against the rich is also irrational, hateful, bigoted, and unconstitutional? You might also Google “hate the rich.”
“Yes because their marriage was not a real marriage and did not conform to federal marriage law. Had they obeyed the law in the first place there would be no penalty. The federal government is allowed to levy this tax because under federal law they are two seperate single people living together.”
The question is, is it constitutional for the government to do this, not is it doing it. We know it’s doing it, just as it’s deporting immigrant same-sex spouses, but not immigrant different-sex spouses.
They didn’t break any laws by getting married to a same-sex spouse. It is legal in their state.
“In the court of law the burden of proof is on the person making the claim.”
Where do you come up with this stuff? It is the government’s burden to defend a law as unconstitutional if it is so accused.
“The law was indeed crafted to promote childrearing by heteosexuals otherwise the federal government would not have bestowed reproductive incentives into the law.”
And what is the benefit to society of heterosexual child-rearing, as compared to homosexual child-rearing? And what “reproductive incentives” does marriage provide and how do these require that same-sex couples not marry?
“Ah the victim card again. No one says “gay people are icky.” I’ve never, ever heard that or read that. Homosexual behavior is indeed “icky,” but that is behavior, not people. Her “marriage” wasn’t marriage because it takes members of the opposite sex to be a marriage.”
Well, since gay people engage in gay people, the “icky” comment still stands.
Yes, her marriage is a marriage, because she is married. Got the license and the t-shirt, too! The state says so, and the federal government doesn’t disagree. DOMA doesn’t say they’re not married, but rather that the marriage isn’t recognized for federal purposes. For what purpose remains a mystery.
@Leo
“Anyone who has a large estate, regardless of sexual orientation, should have a competent legal adviser if they wish to avoid or minimize estate and other taxes.”
Ah, but the person INHERITING the money can’t avoid paying taxes on the inheritance, can s/he? How does one go about setting up a legal situation so that, in the event of a windfall inheritance, s/he doesn’t have to pay taxes on it?
This one was pretty lame, Leo. And cruel. An elderly woman loses her lifetime partner and you think the tax bill she got handed is her fault, because she didn’t do adequate tax planning? Again, how do you set things up to avoid paying on an inheritance? I’d like to know, I have some rich relatives!
“And what is the benefit to society of heterosexual child-rearing, as compared to homosexual child-rearing?” It’s been well documented that children do better with a mother and a father, preferably their own. Two moms or two dads do not equal a mom and a dad. Having a child cut off from one or more biological parents on purpose isn’t nice.
@Sean
What is lame is that the poster child for overthrowing a law overwhelmingly passed by Congress and duly signed into law and centuries old-principles of family law was so rich that the estate considerably exceeded the very generous exemptions and allowances that most people rely on. Only the richest 2% of Americans have to worry about inheritance taxes at all. And even if you do pay, that tax still leaves plenty of money for the heirs.
There are still ways of getting around inheritance taxes, if the super rich care to do so: the use of insurance contracts, trusts, and gifts to the living, for example. If the very wealthy dearly departed didn’t care enough about her partner to do some estate planning, that is not the fault of the state.
The Tea Party wants to end all such taxes.
All of Sean’s arguments on equality can also be used against progressive taxation. In fact, our tax laws are full of special exemptions for all sorts of reasons, and those laws are considered constitutional. I don’t know of any tax law that has been overthrown by the courts as irrational. Poll taxes were outlawed on the basis that they were used to discourage voting, but that is not the case here.
The question is, is it constitutional for the government to do this
Yes it is constitutional for our government to do this.
They didn’t break any laws by getting married to a same-sex spouse.
No but they did not follow the Federal marriage law either in order to qualify for the benefits.
“In the court of law the burden of proof is on the person making the claim.”Where do you come up with this stuff?
The Bill of Rights and the United States Constitution
@Sean Doesn’t matter if they had a marriage license or that the state calls it marriage. You can license a dog to call its tail a leg and the state can call it a leg, but it is still a tail. It isn’t marriage and never will be no matter how many call it that.
Eileen: “It’s been well documented that children do better with a mother and a father, preferably their own.”
It has not been documented that children do better with a mother and father than with same-sex parents. Every time I see such a claim, I look at the study only to find that it didn’t look at same-sex couples at all!
“Doesn’t matter if they had a marriage license or that the state calls it marriage. You can license a dog to call its tail a leg and the state can call it a leg, but it is still a tail. It isn’t marriage and never will be no matter how many call it that.”
Oh, ok, I get it, denial. You don’t approve, therefore it doesn’t exist. Perhaps you can cup your hands over your ears, and scream, “la, la, la!”, too. But the thing is, if you really don’t think it exists, why do you so strongly object to it, and oppose it? I think it must be more real to you than you let on. No one works this hard to oppose something that doesn’t exist. That wouldn’t be rational.
“It’s been well documented that children do better with a mother and a father, preferably their own. Two moms or two dads do not equal a mom and a dad. Having a child cut off from one or more biological parents on purpose isn’t nice.”
Really? Then we should probably outlaw not same-sex marriage, but rather, same-sex parenting, single parenting and divorce. All of these phenomena cut a child off from one of its biological parents, more or less. You in? Should we start the petition drives to outlaw same-sex parenting, single parenting and divorce, so kids aren’t cut off from a parent?
There are lots of situations in which children are cut off from a parent. Very few of them are good. This one has been discussed before, as you may recall. Cutting a child off from a parent intentionally, isn’t good. None of the other situations you mention are currently being debated. When there are laws in the works for them, I’m sure it will be hotly discussed on this blog and everywhere, just as SSM is–because it’s a CURRENT issue. I’d love to outlaw no fault divorce, but there aren’t any courts currently debating that!
Betsy, same-sex parenting is legal in all 50 states. You can talk about how bad it is for gay couples to raise children but it’s legal, in all 50 states, regardless of whether same-sex marriage is legal or not.
And why, Betsy, is no one raising the issue of outlawying divorce? Certainly, I would think a group that says it is “pro-marriage” would take a stand. Unless it’s really just anti-gay marriage. All the talk about protecting marriage and children, and not a peep about outlawing divorce? Huh? Really?! Is there anything more harmful to marriage and children that society can control than legal divorce?
I’ve already answered that.
Just because something is not criminalized, does not mean that it opposite can’t be subsidized or given a favored legal status.
Why should the state legally and rationally prefer certain types of relations? To borrow a phrase from the Supreme Court, because the idea of the family, as consisting in and springing from the union for life of one man and one woman in the estate of matrimony is the foundation of all that is stable and noble in our civilization; the best guarantee of that morality which is the source of all beneficent progress in social and political improvement.