Doma And The Constitution

June 27, 2013. Yesterday was a landmark day in America. The United States Supreme Court ruled that a statute passed by a large majority of both houses of Congress (by 5:1 margins) and approved as law by President Clinton on subjects related directly to the operation of the national government was unconstitutional because it encroached upon the rights of the individual states to regulate matters of family law. It is a fascinating decision and it features some fascinating dissenting opinions that merit careful thought.

The case involved a homosexual or lesbian couple who married lawfully in Canada. They lived and one of them died in New York state, a state that does give recognition to a marriage formed by two people of the same sex. One of the pair died and left a substantial inheritance to her married partner. As most of us know, the United States taxes the estates of those who die possessed of wealth of a certain size and that tax is substantial. If you are married at the time of your death, you may leave an unlimited amount of wealth to your spouse without paying any estate tax. If you leave it to someone not your spouse, the estate tax is imposed.

In 1996 Congress enacted and the executive branch signed the Defense of Marriage Act. In substance it provided that all of the benefit's the federal government conferred upon married couples were not to be made available unless the couple consisted of a man and a woman. When Thea Speyer died and left her estate to her spouse Edith Windsor the United States imposed $360,000 in estate taxes because, under DOMA, the government of the United States did not recognize their marriage even though Canada had sanctioned it and New York (their home state) had, by judicial decision and state executive order given recognition to these relationships.

Ms, Windsor paid the tax but sued for a refund claiming that DOMA deprived her of equal protection under the fifth amendment to the United States Constitution. Put simply, Ms. Windsor contended that the government of the United States had no justifiable basis to discriminate between married persons of the same sex and married persons of opposite sex. The trial court, which is to say the United States District Court in Manhattan agreed with Ms. Windsor and directed the Internal Revenue Service to refund the tax on the basis that the 1996 DOMA did discriminate based on sexual orientation without a sound basis to do so. Even though the Obama administration...