Today the US Supreme Court handed down United States v Windsor, the DOMA case. This concerned Edith Windsor (left; hearing the news (photo from the New Yorker)) who married her long-time partner Thea Spyer in Ontario, Canada in 2007 and whose Canadian marriage was recognised by the state of New York so that, in state law, they were a lawfully married couple. Not so, however, in federal law where DOMA—the Defence of Marriage Act—provided in s.3 that, when reading all federal laws, “marriage means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”. When Thea Spyer died Edith Windsor did not, therefore, benefit from federal tax exemptions normally enjoyed by bereaved spouses and had to pay over $300,000 in inheritance tax. In essence, she sought a tax refund on the basis that DOMA was unconstitutional. In a split court (5-4; Kennedy J writing for the majority) the Supreme Court agreed that DOMA was, indeed, unconstitutional. There are lots of interesting things about Windsor particularly from a procedural perspective (the Department of Justice declined to defend the constitutionality of the Act, which then fell to an intervening party) and these are dealt with in p.p. 5-13 of the slip opinion; I will not go into them here. The remainder of the relatively short opinion deals head on with the question of constitutionality. In it, the Court finds DOMA unconstitutional on the basis of the 5th Amendment’s Due Process Clause as sharpened by the Equal Protection Clause of the 14th Amendment…all couched in a lot of language about states’ rights.

Unconstitutionality

As a general matter the regulation of civil marriage is a matter for individual states and not a matter for federal law. Of course, a number of federal laws relate to marriage in some ways—most particularly perhaps around federal benefits, immigration and so on—but the federal government does not define marriage as a general state of affairs. States do that, so that marriage definitions can (and do) differ from state to state. The sovereignty-related reasons why this is a state matter are not particularly complex in reality; they relate to the individual states’ capacities to regulate numerous matters such as inheritance, medical decision making, property ownership and so on (see esp. p.p. 17-20 of slip opinion for more). Based on all of this, one would expect that the Court might go down the simple route of states’ rights and invalidate DOMA on this very straightforward and, it seems to me, clearly correct application of a basic federal principle. However, the Court instead decided on a due process and equal protection basis.

In essence, the argument was that DOMA was a provision motivated by animus and mala fides, designed to deprive people of a status that states have conferred upon them and to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States” (p. 21). Here states’ rights are in some senses constructed as being mechanisms of conferring or recognising the dignity of same-sex spouses, in the same way as the general capacity to define marriage is seen not merely as a matter of practicality and governmental organisation but also as a means of recognition. When Congress rid those couples of that recognition at the federal level but treated their opposite-sex married neighbours whose marriages had precisely the same basis in municipal law as spouses by means of DOMA it contravened their constitutional rights, and not merely the rights of states (which seem to me to be implicitly recognised as having been violated here also). Thus, DOMA is unconstitutional.

What does this mean for us?

Of course Windsor has arguably limited significance outside of the US context because so much of the reasoning is constructed within a states’ rights framework. However, I do not believe this makes it insignificant. The recognition within the judgment that defining marriage is not merely a matter of practical arrangement by law-makers but also a matter of recognition—echoing Loving v Virginia, of course—is an essential element to the argument for marriage equality. Pragmatic arguments about benefits and practical inequalities and basic unfairness are, of course, made often and made well in the context of marriage equality advocacy and they are important; but they are only part of the story. Marriage equality matters, even for people who do not want to get married, because it is a matter of core, dignitarian recognition. Kennedy’s judgment acknowledges that, especially in its closing pages, and that is an elemental part of achieving equality in this field.

Related to this, marriage inequality is, resultantly, a denial of recognition. Where marriage inequality is deliberately imposed as it was in DOMA (introduced as states began to contemplate introducing same sex marriage) that is not merely a denial but a stripping of recognition. It strikes me that the Court wanted to make this a matter of due process and equal protection, and not a matter of states’ rights, because it was concerned to make that principle clear. That principle is not uniquely applicable in a states’ rights or federal context; it is generally applicable. I can imagine, for example, its deployment in Ireland where—one could argue—same-sex couples had a marriage right until that was stripped by the Civil Registration Act 2004 (introducing a same-sex marriage ban expressly for the first time in Ireland). For those of us who support marriage equality—and certainly for me—this elemental question of recognition is what makes this a human rights issue far more than the pragmatic and practical matters. It is why it matters that I can only ‘civilly partner’ and not marry the person I love; it is what causes marriage inequality to result in diminishment, even when a quite good alternative legal status exists. Today, in my view, SCOTUS went a long way towards recognising this, and that may well turn out to be the Windsor legacy.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk