Windsor v. United States

12-2335-cv(L) Windsor v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: September 27, 2012 Decided: October 18, 2012) Docket No. 12-2335-cv(L); 12-2435(Con) - - - - - - - - - - - - - - - - - - - -x EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, Plaintiff-Appellee, - v.UNITED STATES OF AMERICA, Defendant-Appellant, and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges. Intervenor Bipartisan Legal Advisory Group of the 39 United States House of Representatives appeals from an order 40 of the United States District Court for the Southern 41 District of New York granting summary judgment in favor of 1 the surviving spouse of a same-sex couple who was denied the 2 benefit of the spousal deduction under federal tax law. 3 United States, the defendant, is a nominal appellant. 4 the following reasons, we conclude that Section 3 of the 5 Defense of Marriage Act violates equal protection and is 6 therefore unconstitutional. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 The For Judge STRAUB dissents in part and concurs in part in a separate opinion. STUART F. DELERY, Acting Assistant Attorney General, United States Department of Justice, Washington, DC (Michael Jay Singer, August E. Flentje, on the brief), for DefendantAppellant. PAUL D. CLEMENT, Bancroft PLLC, Washington, DC (H. Christopher Bartolomucci, Conor B. Dugan, and Nicholas J. Nelson, on the brief; Kerry W. Kircher, William Pittard, Christine Davenport, Todd B. Tatelman, Mary Beth Walker, Office of General Counsel, United States House of Representatives, Washington, DC, of counsel), for IntervenorDefendant-Appellant. ROBERTA A. KAPLAN, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY (Andrew J. Ehrlich, Jaren Janghorbani, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, James D. Esseks and Rose A. Saxe, American Civil 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Liberties Union, New York, NY, and Melissa Goodman, Arthur Eisenberg, and Mariko Hirose, New York Civil Liberties Union Foundation, New York, NY, on the brief), for Appellee. Vincent P. McCarthy, Litchfield, CT, for amicus curiae American College of Pediatricians in support of Intervenor-DefendantAppellant. Joseph A. Campbell, Alliance Defending Freedom, Scottsdale, AZ, for amicus curiae Frederick Douglas Foundation in support of Intervenor-Defendant-Appellant. Cecilia Noland-Heil, American Center for Law & Justice, Virginia Beach, VA (Erik Zimmerman, Jay Alan Sekulow and Stuart J. Roth, American Center for Law & Justice, Virginia Beach, VA and Washington, DC, on the brief), for amici curiae Former Attorneys General Edwin Meese III and John Ashcroft in support of Intervenor-DefendantAppellant. Gregory F. Zoeller, Attorney General, State of Indiana, Indianapolis, IN (Thomas M. Fisher, Solicitor General, Ellen H. Meilaender, Deputy Attorney General, on the brief), for amici curiae States of Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota and Virginia in support 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 of Intervenor-DefendantAppellant. Joshua K. Baker, National Organization for Marriage, Washington, DC (William C. Duncan, Marriage Law Foundation, Lehi, UT, on the brief), for amicus curiae National Organization for Marriage in support of Intervenor-DefendantAppellant. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for amicus curiae Concerned Women for America in support of Intervenor-DefendantAppellant. William F. Sheehan, Goodwin Procter LLP, Washington, DC (Andrew S. Hudson, Goodwin Procter LLP, Washington, DC and Nathalie F.P. Gilfoyle, American Psychological Association, Washington, DC, on the brief), for amici curiae the American Psychological Association, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychoanalytic Association, the National Association of Social Workers and its New York City and State Chapters, and the New York State Psychological Association in support of Plaintiff-Appellee. Susan L. Sommer, Lambda Legal Defense & Education Fund, Inc., New York, NY (Timothy S. Fischer and Brian P. Rice, McCarter & 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 English, LLP, Hartford, CT and Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA, on the brief), for amici curiae Bar Associations and Public Interest and Legal Service Organizations in Support of PlaintiffAppellee. Matthew F. Damm, O�Melveny & Myers LLP, New York, NY (Dawn Sestito, Demitri D. Portnoi, and Amy R. Lucas, O�Melveny & Myers LLP, Los Angeles, CA and New York, NY, on the brief), for amici curiae Family Law Professors in Support of Plaintiff-Appellee. Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY (Francis F. Caputo, Susan Paulson, on the brief), for amici curiae the City of New York, the Council of the City of New York, Michael R. Bloomberg, in His Official Capacity as Mayor of the City of New York, and Christine C. Quinn, in Her Official Capacity as Speaker of the Council of the City of New York in Support of PlaintiffAppellee. Mark Wolinsky, Wachtell, Lipton, Rosen & Katz, New York, NY (Jonathan M. Moses, Kevin S. Schwartz, Luke M. Appling, on the brief), for amicus curiae the Partnership for New York City in Support of PlaintiffAppellee. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Suzanne B. Goldberg, Columbia Law School, New York, NY, for amicus curiae Columbia Law School Sexuality & Gender Law Clinic in Support of PlaintiffAppellee. Catherine R. Connors, Pierce Atwood LLP, Portland, ME, for amici curiae Historians in Support of Plaintiff-Appellee. Miriam R. Nemetz, Mayer Brown LLP, Washington, DC (Kathleen Connery Dawe and Michael B. Kimberly, Mayer Brown LLP, Washington, DC, and Heather C. Sawyer, Committee on the Judiciary, John Conyers, Jr., and Jerrold Nadler, Ranking Members, Washington, DC), for amici curiae Members of the U.S. House of Representatives, in Support of Plaintiff-Appellee. Nicole G. Berner, Washington, DC (James B. Coppess, AFL-CIO, Washington, DC, Patrick Szymanski, Change to Win, Washington, DC, and Alice O�Brien, National Education Association, Washington, DC, on the brief), for amici curiae American Federation of Labor and Congress of Industrial Organizations, Change to Win, and National Education Association in support of Plaintiff-Appellee. Joseph F. Tringali, Simpson Thacher & Bartlett LLP, New York, NY (Alexandra C. Pitney and Nicholas S. Davis, on the 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 brief), for amici curiae Service and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE), National Senior Citizens Law Center and American Society on Aging in support of Plaintiff-Appellee. Debo P. Adegbile, NAACP Legal Defense & Education Fund, Inc., New York, NY (Elice C. Boddie, Rachel M. Kleinman, Ria A. Tabacco, Joshua Civin, NAACP Legal Defense & Education Fund, Inc., New York, NY, and Washington, DC), for amicus curiae NAACP Legal Defense & Education Fund, Inc., in support of Plaintiff-Appellee. Harvey J. Wolkoff, Ropes & Gray LLP, New York, NY (Stuart W. Yothers and Samuel P. Bickett, Ropes & Gray LLP, New York, NY and Steven M. Freeman and Seth M. Marnin, Anti-Defamation League, New York, NY, on the brief), for amici curiae AntiDefamation League, Central Conference of American Rabbis, Congregation Beit Simchat Torah, Bend the Arc: A Jewish Partnership for Justice, Hadassah: the Women�s Zionist Organization of America, the Hindu American Foundation, Interfaith Alliance Foundation, Japanese Citizens League, the Justice and Witness Ministries: United Church of Christ, National Counsel of Jewish Women, People for the American Way Foundation, Union for Reform Judaism, Women�s League for 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Conservative Judaism, and Women of Reform Judaism in support of Plaintiff-Appellee. Sharon L. Nelles, Sullivan & Cromwell LLP, New York, NY (H. Rodgin Cohen, Mitchell S. Eitel, William H. Wagener, Heather H. Volik, Diana G. Iskelov, Sullivan & Cromwell LLP, New York, NY and Laura W. Brill and Meaghan Field, Kendall Brill & Klieger LLP, Los Angeles, CA, on the brief), for amici curiae Professors of Family and Child Welfare Law in support of Plaintiff-Appellee. Eric T. Schneiderman, Attorney General, State of New York, New York, NY (William H. Sorrell, Attorney General, State of Vermont, Montpelier, VT and George Jepsen, Attorney General, State of Connecticut, Hartford, CT, on the brief) for amici curiae States of New York, Vermont, and Connecticut in support of neither party. Melanie Sloan, Citizens for Responsibility and Ethics in Washington, Washington, DC, (Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC and Alan B. Morrison, George Washington Law School, Washington, DC, on the brief), for amicus curiae Citizens for Responsibility and Ethics in Washington in support of neither party. 8 1 DENNIS JACOBS, Chief Judge: 2 Plaintiff Edith Windsor sued as surviving spouse of a 3 same-sex couple that was married in Canada in 2007 and was 4 resident in New York at the time of her spouse�s death in 5 2009. 6 deduction for federal estate taxes under 26 U.S.C. § 2056(A) 7 solely because Section 3 of the Defense of Marriage Act 8 (�DOMA�), 1 U.S.C. § 7, defines the words �marriage� and 9 �spouse� in federal law in a way that bars the Internal Windsor was denied the benefit of the spousal 10 Revenue Service from recognizing Windsor as a spouse or the 11 couple as married. 12 13 14 15 16 17 18 The text of § 3 is as follows: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word �marriage� means only a legal union between one man and one woman as husband and wife, the word �spouse� refers only to a person of the opposite sex who is a husband or a wife. 19 1 U.S.C. § 7. 20 the amount of $363,053, which turns on the constitutionality 21 of that section of federal law. At issue is Windsor�s claim for a refund in 22 For the reasons that follow we hold that: 23 I. Windsor has standing in this action because we 24 predict that New York, which did not permit same-sex 25 marriage to be licensed until 2011, would nevertheless have 9 1 recognized Windsor and Thea Clara Spyer as married at the 2 time of Spyer�s death in 2009, so that Windsor was a 3 surviving spouse under New York law. 4 II. Windsor�s suit is not foreclosed by Baker v. 5 Nelson, 409 U.S. 810 (1971), which held that the use of the 6 traditional definition of marriage for a state�s own 7 regulation of marriage status did not violate equal 8 protection. 9 III. Section 3 of DOMA is subject to intermediate 10 scrutiny under the factors enumerated in City of Cleburn v. 11 Cleburn Living Center, 473 U.S. 431 (1985), and other cases. 12 IV. The statute does not withstand that review. 13 14 * * * On June 6, 2012, the United States District Court for 15 the Southern District of New York (Jones, J.) granted 16 summary judgment in favor of Windsor in a thorough opinion. 17 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 18 2012). 19 equal protection because there was no rational basis to 20 support it. 21 grant of summary judgment de novo, construing the record in 22 the light most favorable to the nonmoving party.� The court ruled that Section 3 of DOMA violated the Id. at 406. �We review a district court's 10 Church of 1 American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 2 203 (2d Cir. 2004). 3 A preliminary issue concerning alignment of the parties 4 on appeal has been presented by motion. 5 initially named as the sole defendant, conducted its defense 6 of the statute in the district court up to a point. 7 February 23, 2011, three months after suit was filed, the 8 Department of Justice declined to defend the Act thereafter, 9 and members of Congress took steps to support it. The United States, On The 10 Bipartisan Legal Advisory Group of the United States House 11 of Representatives (�BLAG�) retained counsel and since then 12 has taken the laboring oar in defense of the statute. 13 United States remained active as a party, switching sides to 14 advocate that the statute be ruled unconstitutional. 15 The Following the district court�s decision, BLAG filed a 16 notice of appeal, as did the United States in its role as 17 nominal defendant. 18 strike the notice of appeal filed by the United States and 19 to realign the appellate parties to reflect that the United 20 States prevailed in the result it advocated in the district 21 court. 22 withdrawal of its advocacy, the United States continues to BLAG moved this Court at the outset to The motion is denied. Notwithstanding the 11 1 enforce Section 3 of DOMA, which is indeed why Windsor does 2 not have her money. 3 will have a considerable impact on many operations of the 4 United States. 5 (�When an agency of the United States is a party to a case 6 in which the Act of Congress it administers is held 7 unconstitutional, it is an aggrieved party for purposes of 8 taking an appeal . . . . The agency�s status as an aggrieved 9 party . . . is not altered by the fact that the Executive 10 may agree with the holding that the statute in question is 11 unconstitutional.�). The constitutionality of the statute See INS v. Chadha, 462 U.S. 919, 931 (1983) 12 13 DISCUSSION 14 I 15 For the purpose of federal estate taxes, the law of the 16 state of domicile ordinarily determines whether two persons 17 were married at the time of death. 18 T.C. 1049, 1051, 1053-54 (1953); Rev. Rul. 58-66, 1958-1 19 C.B. 60 (�The marital status of individuals as determined 20 under state law is recognized in the administration of the 21 Federal income tax laws.�). 22 2009, New York did not yet license same-sex marriage itself. Eccles v. Comm�r, 19 At the time of Spyer�s death in 12 1 A separate question�-decisive for standing in this case�-is 2 whether in 2009 New York recognized same-sex marriages 3 entered into in other jurisdictions. 4 presented to the New York Court of Appeals in Godfrey v. 5 Spano, 13 N.Y.3d 358 (2009). 6 resolve that case on other grounds, finding �it unnecessary 7 to reach defendants' argument that New York's common-law 8 marriage recognition rule is a proper basis for the 9 challenged recognition of out-of-state same-sex marriages.� 10 11 That question was However, the court was able to Id. at 377. When we are faced with a question of New York law that 12 is decisive but unsettled, we may �predict� what the state�s 13 law is, consulting any rulings of its intermediate appellate 14 courts and trial courts, or we may certify the question to 15 the New York Court of Appeals. 16 Ins. Co. v. Madella, 372 F.3d 500, 505 (2d Cir. 2004). 17 urges that we certify this question, observing that this is 18 an option that we have and that the district court did not. 19 We decline to certify. 20 See State Farm Mut. Auto. First, the Court of Appeals has signaled its 21 disinclination to decide this very question. 22 elected to decide Godfrey on an alternative sufficient 13 When it BLAG 1 ground, the Court of Appeals expressed a preference and 2 expectation that the issue would be decided by the New York 3 legislature: �[w]e . . . hope that the Legislature will 4 address this controversy.� 5 hesitate to serve up to the Court of Appeals a question that 6 it is reluctant to answer for a prudential reason. 7 Godfrey, 13 N.Y.3d at 377. We Second, rulings of New York�s intermediate appellate 8 courts are useful and unanimous on this issue. 9 �well-established principle that the ruling of an 10 intermediate appellate state court is a datum for 11 ascertaining state law which is not to be disregarded by a 12 federal court unless it is convinced by other persuasive 13 data that the highest court of the state would decide 14 otherwise.� 15 Comm'n, 198 F.3d 317, 321 (2d Cir. 1999) (internal quotation 16 marks and ellipsis omitted). 17 appellate divisions have concluded that New York recognized 18 foreign same-sex marriages before the state passed its 19 marriage statute in 2011. 20 A.D.3d 566 (1st Dep't 2011) (Windsor�s home Department, 21 recognizing a 2008 Canadian marriage); Lewis v. N.Y. State 22 Dep't of Civil Serv., 872 N.Y.S.2d 578 (3rd Dep�t 2009), It is a Statharos v. New York City Taxi and Limousine Three of New York�s four See In re Estate of Ranftle, 81 14 1 aff'd on other grounds sub nom. Godfrey, 13 N.Y.3d 358; 2 Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (4th Dep�t 3 2008). 4 before Spyer died on February 5, 2009. 5 view of these decisions, we see no need to seek guidance 6 here. 7 under New York law at the time of Spyer�s death, she has 8 standing. Two of these cases, Lewis and Martinez, were decided Given the consistent Because Windsor�s marriage would have been recognized 9 10 11 II In Baker v. Nelson, an appeal from a Minnesota Supreme 12 Court decision finding no right to same-sex marriage, the 13 Supreme Court issued a summary dismissal �for want of a 14 substantial federal question.� 15 Minnesota Supreme Court had held that �[t]he equal 16 protection clause of the Fourteenth Amendment, like the due 17 process clause, is not offended by the state's 18 classification of persons authorized to marry.� 19 Nelson, 291 Minn. 310, 313 (Minn. 1971). 20 Baker compels the inference that Congress may prohibit same- 21 sex marriage in the same way under federal law without 22 offending the Equal Protection Clause. 15 409 U.S. 810 (1971). The Baker v. According to BLAG, We disagree. 1 �The Supreme Court has long recognized that the 2 precedential value of a summary dismissal is limited to �the 3 precise issues presented and necessarily decided by� the 4 dismissal.� 5 Cir. 2010) (quoting Mandell v. Bradley, 432 U.S. 173, 176 6 (1977)). 7 constitutionally define marriage as it does in Section 3 of 8 DOMA is sufficiently distinct from the question in Baker: 9 whether same-sex marriage may be constitutionally restricted Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d The question whether the federal government may 10 by the states. 11 married in this case, at least in the eye of New York, where 12 they lived. 13 does not control equal protection review of DOMA for these 14 reasons.1 After all, Windsor and Spyer were actually Other courts have likewise concluded that Baker 1 See Massachusetts v. U.S. Dep�t of HHS, 682 F.3d 1, 8 (1st Cir. 2012) (finding that Baker permitted equal protection review so long as arguments did not �rest on a constitutional right to same-sex marriage�); Windsor, 833 F. Supp. 2d at 399-400 (�The case before the Court does not present the same issue as that presented in Baker. . . . Accordingly, after comparing the issues in Baker and those in the instant case, the Court does not believe that Baker �necessarily decided� the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause.�); Pedersen v. Office of Pers. Mmgmt., No. 3:10-cv-1750, 2012 WL 3113883, at *11 (D. Conn. July 31, 2012) (�DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.�); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 16 1 Even if Baker might have had resonance for Windsor�s 2 case in 1971, it does not today. 3 courts had best adhere to the view that if the Court has 4 branded a question as unsubstantial, it remains so except 5 when doctrinal developments indicate otherwise.�� 6 Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. 7 Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 8 259, 263 n.3 (2d Cir. 1967) (Friendly, J.)) (emphasis 9 added). ��[I]nferior federal Hicks v. In the forty years after Baker, there have been 10 manifold changes to the Supreme Court�s equal protection 11 jurisprudence. 12 When Baker was decided in 1971, �intermediate scrutiny� 13 was not yet in the Court�s vernacular. 14 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting) 15 (coining �intermediate level scrutiny�). See Craig v. Boren, Classifications (N.D. Cal. 2012) (�The failure of the federal government to recognize Ms. Golinski's marriage and to provide benefits does not alter the fact that she is married under state law.�); Dragovich v. U.S. Dept. of Treasury, No. 4:10-cv01564-CW, 2012 WL 1909603, at *6-7 (N.D. Cal. May 24, 2012); Smelt v. Cnty of Orange, 374 F. Supp. 2d. 861, 872-74 (C.D. Cal. 2005), vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 135-38 (Bankr. W.D. Wash. 2004); see also Perry v. Brown, 671 F.3d 1052, 1082 n. 14 (9th Cir. 2012) (finding that Baker did not preempt consideration of Proposition 8 case, because �the question of the constitutionality of a state's ban on same-sex marriage� was not before the court) (emphasis added). 17 1 based on illegitimacy and sex were not yet deemed quasi- 2 suspect. 3 (1982) (applying intermediate scrutiny to a classification 4 based on illegitimacy, and describing how heightened 5 scrutiny had been used for such classifications starting in 6 1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) 7 (plurality opinion) (identifying sex as a suspect class); 8 Boren, 429 U.S. at 197-98 (applying intermediate scrutiny to 9 a classification based on sex); United States v. Virginia, See Lalli v. Lalli, 439 U.S. 259, 264-65, 275 10 518 U.S. 515, 575 (1996) (Scalia, J., dissenting) 11 (summarizing that sex-based classifications were analyzed 12 with rational basis review before the 1970's).2 13 had not yet ruled that �a classification of [homosexuals] 14 undertaken for its own sake� actually lacked a rational 15 basis. 16 1971, the government could lawfully �demean [homosexuals�] 17 existence or control their destiny by making their private 18 sexual conduct a crime.� 19 574, 578 (2003) (noting that there was a �tenable� equal The Court Romer v. Evans, 517 U.S. 620, 635 (1996). And, in Lawrence v. Texas, 539 U.S. 558, 2 While other classifications have been deemed quasisuspect or suspect over the years, the decisions to add sex and illegitimacy are especially helpful in analyzing whether the classification made in DOMA merits intermediate scrutiny. 18 1 protection argument against such laws, but choosing instead 2 to overturn Bowers v. Hardwick, 478 U.S. 186 (1986)). 3 doctrinal changes constitute another reason why Baker does 4 not foreclose our disposition of this case. 5 These The First Circuit has suggested in dicta that 6 recognition of a new suspect classification in this context 7 would �imply[] an overruling of Baker.� 8 682 F.3d at 9. 9 Circuit did not discuss. See Massachusetts, We disagree for two reasons that the First First, when it comes to marriage, 10 legitimate regulatory interests of a state differ from those 11 of the federal government. 12 area that has long been regarded as a virtually exclusive 13 province of the States.� 14 (1975). 15 State . . . has [the] absolute right to prescribe the 16 conditions upon which the marriage relation between its own 17 citizens shall be created, and the causes for which it may 18 be dissolved.� 19 (1878), overruled on other grounds by Shaffer v. Heitner, 20 433 U.S. 186 (1977). 21 analysis of DOMA�s marital classification under federal law 22 is distinct from the analysis necessary to determine whether 23 the marital classification of a state would survive such 24 scrutiny. Regulation of marriage is �an Sosna v. Iowa, 419 U.S. 393, 404 It has for very long been settled that �[t]he Pennoyer v. Neff, 95 U.S. 714, 734-35 Therefore, our heightened scrutiny 19 1 Second, the Supreme Court�s decision to apply rational 2 basis review in Romer does not imply to us a refusal to 3 recognize homosexuals as a quasi-suspect class. 4 Massachusetts, 682 F.3d at 9. 5 abandoned their quasi-suspect argument after the trial court 6 decision. 7 dissenting). 8 Baker has no bearing on this case. See The litigants in Romer had See Romer, 517 U.S. at 640 n.1 (Scalia, J., We are satisfied, for these reasons, that 9 10 11 III �In deciding an equal protection challenge to a statute 12 that classifies persons for the purpose of receiving 13 [federal] benefits, we are required, so long as the 14 classifications are not suspect or quasi-suspect and do not 15 infringe fundamental constitutional rights, to uphold the 16 legislation if it bears a rational relationship to a 17 legitimate governmental objective.� 18 F.2d 132, 136 (2d Cir. 1990). 19 bare . . . desire to harm a politically unpopular group 20 cannot constitute a legitimate government interest.�� 21 v. Evans, 517 U.S. 620, 634-35 (1996) (quoting Dep�t. of 22 Agric. v. Moreno, 413 U.S. 528, 534 (1973)). 23 rational basis review is indulgent and respectful, it is not Thomas v. Sullivan, 922 Of course, ��a 20 Romer So while 1 meant to be �toothless.� 2 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510 3 (1976)). 4 Schweiker v. Wilson, 450 U.S. 221, The district court ruled that DOMA violated the Equal 5 Protection Clause for want of a rational basis. 6 833 F. Supp. 2d at 406. 7 basis for Section 3 of DOMA is closely argued. 8 amici proffer several justifications that alone or in tandem 9 are said to constitute sufficient reason for the enactment. Windsor, But the existence of a rational BLAG and its 10 Among these reasons are protection of the fisc, uniform 11 administration of federal law notwithstanding recognition of 12 same-sex marriage in some states but not others, the 13 protection of traditional marriage generally, and the 14 encouragement of �responsible� procreation. 15 Windsor and her amici vigorously argue that DOMA is not 16 rationally related to any of these goals. 17 review places the burden of persuasion on the party 18 challenging a law, who must disprove ��every conceivable 19 basis which might support it.�� 20 312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts 21 Co., 410 U.S. 356, 364 (1973)). 22 absence of any rational basis takes up a heavy load. 23 would seem to be true in this case--the law was passed by 21 Rational basis Heller v. Doe, 509 U.S. So a party urging the That 1 overwhelming bipartisan majorities in both houses of 2 Congress; it has varying impact on more than a thousand 3 federal laws; and the definition of marriage it affirms has 4 been long-supported and encouraged. 5 On the other hand, several courts have read the Supreme 6 Court�s recent cases in this area to suggest that rational 7 basis review should be more demanding when there are 8 �historic patterns of disadvantage suffered by the group 9 adversely affected by the statute.� See Massachusetts, 682 10 F.3d at 10-11; Able v. U.S., 155 F.3d 628, 634 (2d Cir. 11 1998); United States v. Then, 56 F.3d 464, 468 (2d Cir. 12 1995) (Calabresi, J., concurring). 13 lines, the district court in this case and the First Circuit 14 in Massachusetts both adopted more exacting rational basis 15 review for DOMA. 16 (describing its �more careful assessment�); Windsor, 833 F. 17 Supp. 2d at 402 (noting that �rational basis analysis can 18 vary by context�). 19 characterized this form of analysis as �rational basis plus 20 or intermediate scrutiny minus.� Proceeding along those See Massachusetts, 682 F.3d at 11 At argument, counsel for BLAG wittily Oral Arg. Tr. 16:10-12. 21 The Supreme Court has not expressly sanctioned such 22 modulation in the level of rational basis review; discussion 23 pro and con has largely been confined to concurring and 22 1 dissenting opinions.3 2 is some doctrinal instability in this area. We think it is safe to say that there 3 Fortunately, no permutation of rational basis review is 4 needed if heightened scrutiny is available, as it is in this 5 case. 6 which explains why Section 3 of DOMA may withstand rational 7 basis review. We therefore decline to join issue with the dissent, 3 Compare Lawrence, 539 U.S. at 580 (O�Connor, J., concurring) (�When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.�) and U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 188 (1980) (Brennan, J., dissenting) (�In other cases, however, the courts must probe more deeply.�) with City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 459-60 (1985) (Marshall, J., concurring in part and dissenting in part) (�The refusal to acknowledge that something more than minimum rationality review is at work here is, in my view, unfortunate . . . . [B]y failing to articulate the factors that justify today's �second order� rational-basis review, the Court provides no principled foundation for determining when more searching inquiry is to be invoked. Lower courts are thus left in the dark on this important question, and this Court remains unaccountable for its decisions employing, or refusing to employ, particularly searching scrutiny.�) and Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J., dissenting) (�[T]he Court has rejected, albeit Sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection Clause of much noneconomic legislation.�). But see U.S. R.R. Ret. Bd., 449 U.S. at 176 n.10 (�The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.�). 23 1 Instead, we conclude that review of Section 3 of DOMA 2 requires heightened scrutiny. 3 certain factors to decide whether a new classification 4 qualifies as a quasi-suspect class. 5 whether the class has been historically �subjected to 6 discrimination,� Bowen v. Gilliard, 483 U.S. 587, 602 7 (1987); B) whether the class has a defining characteristic 8 that �frequently bears [a] relation to ability to perform or 9 contribute to society,� Cleburne, 473 U.S. at 440-41; C) The Supreme Court uses They include: A) 10 whether the class exhibits �obvious, immutable, or 11 distinguishing characteristics that define them as a 12 discrete group;� Bowen, 483 U.S. at 602; and D) whether the 13 class is �a minority or politically powerless.� 14 Immutability and lack of political power are not strictly 15 necessary factors to identify a suspect class. 16 Cleburne, 473 U.S. at 442 n.10 (��[T]here�s not much left of 17 the immutability theory, is there?��) (quoting J. Ely, 18 Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at 19 472 n.24 (Marshall, J., concurring in part and dissenting in 20 part) (�The �political powerlessness� of a group may be 21 relevant, but that factor is neither necessary, as the 22 gender cases demonstrate, nor sufficient, as the example of 23 minors illustrates.�); Nyquist v. Mauclet, 432 U.S. 1, 9 24 Id. See 1 n.11 (1977) (rejecting the argument that alienage did not 2 deserve strict scrutiny because it was not immutable); see 3 also Pedersen, 2012 WL 3113883, at *13; Golinski, 824 F. 4 Supp. 2d at 983; Kerrigan v. Comm�r of Pub. Health, 289 5 Conn. 135, 167-68 (2008). Nevertheless, immutability and 6 political power are indicative, and we consider them here. 7 In this case, all four factors justify heightened scrutiny: 8 A) homosexuals as a group have historically endured 9 persecution and discrimination; B) homosexuality has no 10 relation to aptitude or ability to contribute to society; C) 11 homosexuals are a discernible group with non-obvious 12 distinguishing characteristics, especially in the subset of 13 those who enter same-sex marriages; and D) the class remains 14 a politically weakened minority. 15 A) 16 It is easy to conclude that homosexuals have suffered a History of Discrimination 17 history of discrimination. 18 to establish and document this history, but we think it is 19 not much in debate. 20 animus and discrimination against homosexuals in this 21 country is that, for many years and in many states, 22 homosexual conduct was criminal. These laws had the 23 imprimatur of the Supreme Court. See Bowers, 478 U.S. at Windsor and several amici labor Perhaps the most telling proof of 25 1 196; see also Lawrence, 539 U.S. at 578 (noting that such 2 laws �demean[ed homosexuals�] existence [and] control[led] 3 their destiny�). 4 BLAG argues that discrimination against homosexuals 5 differs from that against racial minorities and women 6 because �homosexuals as a class have never been politically 7 disenfranchised.� 8 Citizens born out of wedlock have never been inhibited in 9 voting; yet the Supreme Court has applied intermediate True, but the difference is not decisive. 10 scrutiny in cases of illegitimacy. 11 Lalli, 439 U.S. 259 (1982). 12 unlike protected classes, homosexuals have not �suffered 13 discrimination for longer than history has been recorded.� 14 But whether such discrimination existed in Babylon is 15 neither here nor there. 16 endured discrimination in this country since at least the 17 1920s. 18 sufficient to document a �history of discrimination.� 19 Pedersen, 2012 WL 3113883 at *21 (summarizing that �the 20 majority of cases which have meaningfully considered the 21 question [have] likewise held that homosexuals as a class 22 have experienced a long history of discrimination�). 23 B) See generally Lalli v. Second, BLAG argues that, BLAG concedes that homosexuals have Ninety years of discrimination is entirely Relation to Ability 26 See 1 Also easy to decide in this case is whether the class 2 characteristic �frequently bears [a] relation to ability to 3 perform or contribute to society.� 4 440-41; see Frontiero, 411 U.S. at 686 (�[W]hat 5 differentiates sex from such non-suspect statuses as 6 intelligence or physical disability, and aligns it with the 7 recognized suspect criteria, is that the sex characteristic 8 frequently bears no relation to ability to perform or 9 contribute to society.�). Cleburne, 473 U.S. at In Cleburne, the Supreme Court 10 ruled that heightened scrutiny was inappropriate because 11 �those who are mentally retarded have a reduced ability to 12 cope with and function in the everyday world.� 13 442. 14 age classifications, finding that heightened scrutiny was 15 not appropriate for mandatory retirement laws because 16 �physical ability generally declines with age� and such 17 requirements reasonably �serve[d] to remove 18 from . . . service those whose fitness for uniformed work 19 presumptively has diminished with age.� 20 316. 21 473 U.S. at The Court employed similar reasoning with respect to There is no such impairment here. Murgia, 427 U.S. at There are some 22 distinguishing characteristics, such as age or mental 23 handicap, that may arguably inhibit an individual's ability 27 1 to contribute to society, at least in some respect. 2 homosexuality is not one of them. 3 experience has nothing to do with aptitude or performance. 4 But The aversion homosexuals We do not understand BLAG to argue otherwise. Rather, 5 BLAG suggests that the proper consideration is whether �the 6 classification turns on �distinguishing characteristics 7 relevant to interests the State has the authority to 8 implement,�� quoting Cleburne, 473 U.S. at 441. 9 urges that same-sex couples have a diminished ability to 10 discharge family roles in procreation and the raising of 11 children. 12 standard to support its interpretation, and it is 13 inconsistent with actual cases. 14 U.S. at 686 (distinguishing that sex, unlike intelligence, 15 has no bearing on one�s general ability to contribute to 16 society). 17 by BLAG bear upon whether the law withstands scrutiny (the 18 second step of analysis) rather than upon the level of 19 scrutiny to apply. 20 (1988) (defining the test for intermediate scrutiny as 21 whether a classification is �substantially related to an 22 important government interest�). Thus, BLAG BLAG cites no precedential application of that See, e.g., Frontiero, 411 In any event, the abilities or inabilities cited Cf. Clark v. Jeter, 486 U.S. 456, 461 23 28 1 2 C) Distinguishing Characteristic We conclude that homosexuality is a sufficiently 3 discernible characteristic to define a discrete minority 4 class. 5 Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) 6 (Brennan, J., dissenting from denial of certiorari) 7 (�[H]omosexuals constitute a significant and insular 8 minority of this country�s population.�). 9 See Rowland v. Mad River Local School Dist., This consideration is often couched in terms of 10 �immutability.� 11 orientation is not necessarily fixed, suggesting that it may 12 change over time, range along a continuum, and overlap (for 13 bisexuals). 14 �obvious, immutable, or distinguishing characteristics that 15 define . . . a discrete group.� 16 (emphasis added). 17 Mathews v. Lucas, 427 U.S. 495, 506 (1976). 18 based on alienage, illegitimacy, and national origin are all 19 subject to heightened scrutiny, Cleburne, 473 U.S. at 440- 20 41, even though these characteristics do not declare 21 themselves, and often may be disclosed or suppressed as a BLAG and its amici argue that sexual But the test is broader: whether there are See Bowen, 483 U.S. at 602 No �obvious badge� is necessary. 29 See Classifications 1 matter of preference.4 2 characteristic of the class calls down discrimination when 3 it is manifest. 4 What seems to matter is whether the Thus a person of illegitimate birth may keep that 5 status private, and ensure that no outward sign discloses 6 the status in social settings or in the workplace, or on the 7 subway. 8 benefits on the death of a parent (for example), the 9 illegitimate status becomes manifest. But when such a person applies for Social Security The characteristic is 10 necessarily revealed in order to exercise a legal right. 11 Similarly, sexual preference is necessarily disclosed when 4 Alienage and illegitimacy are actually subject to change. See Pedersen, 2012 WL 3113883 at *23 (�The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. Additionally, one's status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic.�) (internal citation omitted); see also Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring) (�It is clear that by �immutability� the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. . . . At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.�). 30 1 two persons of the same sex apply for a marriage license (as 2 they are legally permitted to do in New York), or when a 3 surviving spouse of a same-sex marriage seeks the benefit of 4 the spousal deduction (as Windsor does here). 5 BLAG argues that a classification based on sexual 6 orientation would be more �amorphous� than discrete. 7 be that the category exceeds the number of persons whose 8 sexual orientation is outwardly �obvious, immutable, or 9 distinguishing,� and who thereby predictably undergo It may 10 discrimination. 11 illegitimacy and national origin. 12 is whether the characteristic invites discrimination when it 13 is manifest. 14 But that is surely also true of Again, what matters here The class affected by Section 3 of DOMA is composed 15 entirely of persons of the same sex who have married each 16 other. 17 category of homosexuals; but as counsel for BLAG conceded at 18 argument, there is nothing amorphous, capricious, or 19 tentative about their sexual orientation. 20 12:11-14. 21 are the population most visible to the law, and they are 22 foremost in mind when reviewing DOMA�s constitutionality. Such persons constitute a subset of the larger Oral Arg. Tr. Married same-sex couples like Windsor and Spyer 23 31 1 We therefore conclude that sexual orientation is a 2 sufficiently distinguishing characteristic to identify the 3 discrete minority class of homosexuals. 4 D) 5 Finally, we consider whether homosexuals are a Political Power 6 politically powerless minority. 7 Without political power, minorities may be unable to protect 8 themselves from discrimination at the hands of the 9 majoritarian political process. See Bowen, 483 U.S. at 602. We conclude that 10 homosexuals are still significantly encumbered in this 11 respect. 12 The question is not whether homosexuals have achieved 13 political successes over the years; they clearly have. 14 question is whether they have the strength to politically 15 protect themselves from wrongful discrimination. 16 Supreme Court ruled that sex-based classifications were 17 subject to heightened scrutiny in 1973, the Court 18 acknowledged that women had already achieved major political 19 victories. 20 Amendment had been ratified in 1920, and Title VII had 21 already outlawed sex-based employment. 22 The Court was persuaded nevertheless that women still lacked 23 adequate political power, in part because they were �vastly See Frontiero, 411 U.S. at 685. 32 The When the The Nineteenth See 78 Stat. 253. 1 underrepresented in this Nation�s decisionmaking councils,� 2 including the presidency, the Supreme Court, and the 3 legislature. 4 Frontiero, 411 U.S. at 686 n.17. There are parallels between the status of women at the 5 time of Frontiero and homosexuals today: their position �has 6 improved markedly in recent decades,� but they still �face 7 pervasive, although at times more subtle, 8 discrimination . . . in the political arena.� 9 411 U.S. at 685-86. Frontiero, It is difficult to say whether 10 homosexuals are �under-represented� in positions of power 11 and authority without knowing their number relative to the 12 heterosexual population. 13 seemingly small number of acknowledged homosexuals so 14 situated is attributable either to a hostility that excludes 15 them or to a hostility that keeps their sexual preference 16 private--which, for our purposes, amounts to much the same 17 thing. 18 suppress some degree of political activity by inhibiting the 19 kind of open association that advances political agendas. 20 See Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from 21 denial of certiorari) (�Because of the immediate and severe 22 opprobrium often manifested against homosexuals once so 23 identified publicly, members of this group are particularly But it is safe to say that the Moreover, the same considerations can be expected to 33 1 powerless to pursue their rights openly in the political 2 arena.�). 3 In sum, homosexuals are not in a position to adequately 4 protect themselves from the discriminatory wishes of the 5 majoritarian public. 6 7 * * * Analysis of these four factors supports our conclusion 8 that homosexuals compose a class that is subject to 9 heightened scrutiny. We further conclude that the class is 10 quasi-suspect (rather than suspect) based on the weight of 11 the factors and on analogy to the classifications recognized 12 as suspect and quasi-suspect. 13 the target of significant and long-standing discrimination 14 in public and private spheres, this mistreatment �is not 15 sufficient to require �our most exacting scrutiny.�� 16 Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews 17 v. Lucas, 427 U.S. 495, 506 (1976)). 18 19 While homosexuals have been The next step is to determine whether DOMA survives intermediate scrutiny review. 20 21 IV 22 To withstand intermediate scrutiny, a classification 23 must be �substantially related to an important government 34 1 interest.� 2 �Substantially related� means that the explanation must be 3 ��exceedingly persuasive.�� 4 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. 5 Hogan, 458 U.S. 718, 724 (1982)). 6 be genuine, not hypothesized or invented post hoc in 7 response to litigation.� 8 9 Clark v. Jeter, 486 U.S. 456, 461 (1988). United States v. Virginia, 518 �The justification must Id. BLAG advances two primary arguments for why Congress enacted DOMA. First, it cites �unique federal interests,� 10 which include maintaining a consistent federal definition of 11 marriage, protecting the fisc, and avoiding �the unknown 12 consequences of a novel redefinition of a foundational 13 social institution.� 14 enacted the statute to encourage �responsible procreation.� 15 At argument, BLAG�s counsel all but conceded that these 16 reasons for enacting DOMA may not withstand intermediate 17 scrutiny. Second, BLAG argues that Congress Oral Arg. Tr. 16:24-17:6. 18 A) 19 Statements in the Congressional Record express an Maintaining a �Uniform Definition� of Marriage 20 intent to enforce uniform eligibility for federal marital 21 benefits by insuring that same-sex couples receive--or 35 1 lose--the same federal benefits across all states.5 2 However, the emphasis on uniformity is suspicious because 3 Congress and the Supreme Court have historically deferred to 4 state domestic relations laws, irrespective of their 5 variations. 6 To the extent that there has ever been �uniform� or 7 �consistent� rule in federal law concerning marriage, it is 8 that marriage is �a virtually exclusive province of the 9 States.� Sosna, 419 U.S. at 404. As the Supreme Court has 10 emphasized, �the states, at the time of the adoption of the 11 Constitution, possessed full power over the subject of 12 marriage and divorce. . . . [T]he Constitution delegated no 13 authority to the Government of the United States on the 14 subject of marriage and divorce.� 15 U.S. 562, 575 (1906) (emphasis added), overruled on other 16 grounds by Williams v. State of North Carolina, 317 U.S. 287 17 (1942). 18 an area of traditional state regulation.� 19 682 F.3d at 13. Haddock v. Haddock, 201 DOMA was therefore an unprecedented intrusion �into Massachusetts, This is a reason to look upon Section 3 of 5 For example, certain legislators were concerned that it would be administratively difficult to deal with benefit changes as same-sex couples moved between states with different policies on same-sex marriage. See, e.g., 150 Cong. Rec. 15318 (2004) (Sen. Inhofe). 36 1 DOMA with a cold eye. 2 itself instructive; �[d]iscriminations of an unusual 3 character especially suggest careful consideration to 4 determine whether they are obnoxious to the constitutional 5 provision.�� 6 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 7 37-38 (1928)). 8 9 �The absence of precedent . . . is Romer v. Evans, 517 U.S. 620, 633 (1996) Moreover, DOMA�s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because 10 DOMA defined only a single aspect of domestic relations law, 11 it left standing all other inconsistencies in the laws of 12 the states, such as minimum age, consanguinity, divorce, and 13 paternity. 14 Supporting Petitioner at 12-13 (noting that �the federal 15 government has always accepted the states� different ways of 16 defining parental status� and offering numerous examples of 17 critical differences in state parental policies). 18 See Br. of Amici Curiae Family Law Professors The uniformity rationale is further undermined by 19 inefficiencies that it creates. 20 Circuit found, it was simpler--and more consistent--for the 21 federal government to ask whether a couple was married under 22 the law of the state of domicile, rather than adding �an 23 additional criterion, requiring the federal government to 37 As a district court in this 1 identify and exclude all same-sex marital unions from 2 federal recognition.� 3 Golinski, 824 F. Supp. 2d at 1001-02 (�The passage of DOMA 4 actually undermined administrative consistency by requiring 5 that the federal government, for the first time, discern 6 which state definitions of marriage are entitled to federal 7 recognition and which are not.�). 8 9 Pedersen, 2012 WL 3113883 at *48; see Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage 10 as the only inconsistency (among many) in state law that 11 requires a federal rule to achieve uniformity, the 12 rationale premised on uniformity is not an exceedingly 13 persuasive justification for DOMA. 14 B) 15 Another professed goal of Congress is to save Protecting the Fisc 16 government resources by limiting the beneficiaries of 17 government marital benefits. 18 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2922. 19 prudence is undoubtedly an important government interest. 20 Windsor and certain amici contest whether the measure will 21 achieve a net benefit to the Treasury; but in matters of the 22 federal budget, Congress has the prerogative to err (if 23 error it is), and cannot be expected to prophesy the future H.R. Rep. No. 104-664, at 18 38 Fiscal 1 accurately. 2 saving of welfare costs cannot justify an otherwise 3 invidious classification.� 4 365, 375 (1971) (quotation marks omitted). 5 court observed, �excluding any arbitrarily chosen group of 6 individuals from a government program conserves government 7 resources.� 8 marks). 9 But the Supreme Court has held that �[t]he Graham v. Richardson, 403 U.S. As the district Windsor, 833 F. Supp. 2d at 406 (quotation Citing Bowen v. Owens, 476 U.S. 340, 348 (1986), BLAG 10 draws the distinction that DOMA did not withdraw benefits 11 from same-sex spouses; since DOMA was enacted before same- 12 sex marriage was permitted in any state, DOMA operated to 13 prevent the extension of benefits to people who never 14 enjoyed them. 15 grounds and did not involve an invidious classification. 16 Id. at 349-50. 17 benefit withdrawal in the sense that it functionally 18 eliminated longstanding federal recognition of all marriages 19 that are properly ratified under state law--and the federal 20 benefits (and detriments) that come with that recognition. 21 However, Bowen was decided on rational basis Moreover, DOMA is properly considered a Furthermore, DOMA is so broad, touching more than a 22 thousand federal laws, that it is not substantially related 23 to fiscal matters. As amicus Citizens for Responsibility 39 1 and Ethics in Washington demonstrates, DOMA impairs a number 2 of federal laws (involving bankruptcy and conflict-of- 3 interest) that have nothing to do with the public fisc. 4 Br. of Amicus Curiae Citizens for Responsibility and Ethics 5 in Washington at 5-11, 18-23. 6 intent to conserve public resources. 7 8 9 10 See DOMA transcends a legislative For these reasons, DOMA is not substantially related to the important government interest of protecting the fisc. C) Preserving a Traditional Understanding of Marriage Congress undertook to justify DOMA as a measure for 11 preserving traditional marriage as an institution. 12 Cong. Rec. 14951. 13 does not give [a law] immunity from attack for lacking a 14 rational basis.� 15 tradition is hard to justify as meeting the more demanding 16 test of having a substantial relation to an important 17 government interest. 18 and rejected in litigation concerning anti-sodomy laws. 19 Lawrence, 539 U.S. at 577-78 (��[T]he fact that the 20 governing majority in a State has traditionally viewed a 21 particular practice as immoral is not a sufficient reason 22 for upholding a law prohibiting the practice; neither 23 history nor tradition could save a law prohibiting 150 But �[a]ncient lineage of a legal concept Heller, 509 U.S. at 326. A fortiori, Similar appeals to tradition were made 40 See 1 miscegenation from constitutional attack.��) (quoting 2 Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis 3 added). 4 Even if preserving tradition were in itself an 5 important goal, DOMA is not a means to achieve it. 6 district court found: �because the decision of whether 7 same-sex couples can marry is left to the states, DOMA does 8 not, strictly speaking, �preserve� the institution of 9 marriage as one between a man and a woman.� 10 As the Windsor, 833 F. Supp. at 403. 11 Preservation of a traditional understanding of marriage 12 therefore is not an exceedingly persuasive justification for 13 DOMA. 14 D) 15 Finally, BLAG presents three related reasons why DOMA Encouraging Responsible Procreation 16 advances the goals of �responsible childrearing�: 17 subsidizes procreation because only opposite-sex couples can 18 procreate �naturally�; DOMA subsidizes biological parenting 19 (for more or less the same reason); and DOMA facilitates the 20 optimal parenting arrangement of a mother and a father. 21 agree that promotion of procreation can be an important 22 government objective. 23 substantially related to it. DOMA But we do not see how DOMA is 41 We 1 All three proffered rationales have the same defect: 2 they are cast as incentives for heterosexual couples, 3 incentives that DOMA does not affect in any way. 4 not provide any incremental reason for opposite-sex couples 5 to engage in �responsible procreation.�6 6 opposite-sex couples to marry and procreate (or not) were 7 the same after DOMA was enacted as they were before.7 8 courts have likewise been unable to find even a rational 9 connection between DOMA and encouragement of responsible DOMA does Incentives for Other 10 procreation and child-rearing. 11 at 14-15 (underscoring the �lack of any demonstrated 12 connection between DOMA�s treatment of same-sex couples and 13 its asserted goal of strengthening the bonds and benefits to 14 society of heterosexual marriage�) (citations omitted); 15 Windsor, 833 F. Supp. at 404-05; Pedersen, 2012 WL 3113883, 16 at *40-43. See Massachusetts, 682 F.3d 17 6 �[T]he argument that withdrawing the designation of �marriage� from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.� Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012). 7 To the extent that BLAG is suggesting that Congress� laws might actually influence sexual orientation, there is no evidence to support that claim (and it strikes us as farfetched). 42 1 2 DOMA is therefore not substantially related to the important government interest of encouraging procreation. 3 *** 4 DOMA�s classification of same-sex spouses was not 5 substantially related to an important government interest. 6 Accordingly, we hold that Section 3 of DOMA violates equal 7 protection and is therefore unconstitutional. 8 9 10 V Our straightforward legal analysis sidesteps the fair 11 point that same-sex marriage is unknown to history and 12 tradition. 13 holy matrimony. 14 status--however fundamental--and New York has elected to 15 extend that status to same-sex couples. 16 and dissolve a couple�s marriage, but it cannot sanctify or 17 bless it. But law (federal or state) is not concerned with Government deals with marriage as a civil A state may enforce For that, the pair must go next door. 18 19 20 21 CONCLUSION For the foregoing reasons, we AFFIRM the grant of Windsor�s motion for summary judgment. 43 1 2 STRAUB, Circuit Judge, dissenting in part and concurring in part: INTRODUCTION 3 I respectfully dissent in part and concur in part. 4 I concur with those parts of the majority opinion that (1) deny BLAG�s motion to dismiss 5 the appeal taken by the United States, and (2) decline to certify to the New York Court of 6 Appeals the question of whether the State of New York recognized Windsor�s marriage at the 7 time of her wife�s death. For the reasons that follow, I dissent from the majority�s holding that 8 DOMA is unconstitutional under the Fifth Amendment�s equal protection guarantee. 9 The majority holds DOMA unconstitutional, a federal law which formalizes the 10 understanding of marriage in the federal context extant in the Congress, the Presidency, and the 11 Judiciary at the time of DOMA�s enactment and, I daresay, throughout our nation�s history. If 12 this understanding is to be changed, I believe it is for the American people to do so. 13 Forty years ago, the United States Supreme Court was presented with the essentially 14 identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state�s 15 highest court because it found that the right to marry without regard to sex was not a 16 fundamental right and the law�s thrust was not irrational or invidious discrimination. The 17 Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a 18 union between a man and a woman did not violate the United States Constitution. Upon their 19 appeal to the United States Supreme Court, the plaintiffs� jurisdictional statement squarely 20 claimed that Minnesota�s same-sex marriage prohibition violated their equal protection rights. 21 The Supreme Court, in dismissing the appeal for �want of a substantial federal question,� 22 obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to -1- 1 conclude, as it is suggested we should, that the Supreme Court of the United States would have 2 held as it did had it concluded that the Minnesota law was unconstitutional�at a time when it 3 was required to accept the appellate challenge. The Supreme Court made a merits decision, and 4 has never walked away from it or ever suggested that its disposition elided a merits 5 determination on some procedural basis. It has further instructed us that such a disposition, 6 albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on 7 the lower federal courts. And, as recently as 2003, Justice O�Connor reminded us that rational 8 reasons exist to promote the traditional institution of marriage. Baker dictates my decision. 9 Furthermore, it is argued here that we are to disregard this binding precedent and the 10 traditionally applicable rational basis standard of review and, instead, now create a new type of 11 suspect classification requiring a heightened level of scrutiny in respect of the federal definition 12 of marriage. The Supreme Court has never done so, while reminding us to be wary of creating 13 any new such classification and itself not having created any in decades. I believe it would be 14 imprudent to do so in this case. Eleven of our nation�s federal Circuit Courts of Appeals have 15 not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently, 16 the First Circuit went to the extreme of creating a new, increased level of rational basis analysis. 17 This appears to be the first case in which this Court is asked to do the same or more, and the 18 majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage 19 as between a man and a woman. The discrimination in this case does not involve a recognized 20 suspect or quasi-suspect classification. It is squarely about the preservation of the