Ruth Institute Blog

Last week the Supreme Court has ruled in United States v. Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. For all purposes of Federal laws, section 3 defined marriage as a union between one man and one woman. The case arose in New York, under the law of which same-sex couples may enter a status that New York defined as marriage. Ms Windsor, a resident of New York, was the beneficiary of her deceased same-sex spouse’s sizeable estate. Under Federal tax law as affected by section 3 of DOMA, she could not claim the marital exemption that would have sheltered all her inheritance from the IRS. Rather, she was assessed over US$363,000 in Federal estate taxes.

The legal issue, as the Court chose to define it in the majority opinion, was whether the Federal constitution was violated when it applied its definition of marriage to the resident of a state in which the definition was broader. In this situation, the Court held, DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

As the dissents of Justice Scalia and Justice Alito make clear, the reasoning and legal principles on which the ultimate result was based remain murky. It is as if the Court went out of its way to mystify the exact reasons for holding unconstitutional a Federal law that was enacted by overwhelming majorities in 1996 and signed into law by President Bill Clinton — not exactly a hateful, bigoted conservative. The murkiness may well serve as a cover to allow the decision to be used later for an even more expansive ruling.

In his dissent, Justice Scalia predicts that this decision represents but a way station on a journey to another ruling that will prohibit the Federal government and the states from limiting the definition of “marriage” in any way. Justice Scalia is right, for the majority seems to be following a jurisprudential road that we have seen before in matters involving sex.

The Windsor opinion serves the same role for “gay marriage” as the case, Griswold v. Connecticut (1965), served for abortion almost half a century ago. It was in Griswold that the Court penned the infamous language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In Griswold, the Court ruled unconstitutional a state law prohibiting the sale of contraceptives because it impinged “the zone of privacy created by several fundamental constitutional guarantees,” thus offending due process.  

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