Standing and same-sex marriage: A review of Windsor and Perry

By Kelly Albin and Alana Jochum

On June 26, 2013, the U.S. Supreme Court issued two of the most highly anticipated decisions of the year: United States v. Windsor and Hollingsworth v. Perry. Both cases involve marriage equality—one of the most active political debates today—and key procedural issues important to lawyers, judges and the U.S. judicial system as a whole. Regardless of where an individual stands in the same-sex marriage debate, Windsor and Perry’s implications are farreaching and will substantially affect how lawyers counsel clients, especially gay and lesbian clients, on a variety of issues in the near future.

The federal Defense of Marriage Act case: United States v. Windsor
In 2007, Edie Windsor married Thea Spyer, her partner of 42 years, in Canada. After suffering from multiple sclerosis and a heart condition for several years, Spyer passed away in February 2009, leaving Windsor as sole executor of her estate. Although their marriage was recognized by New York state law, the federal Defense of Marriage Act (DOMA) prevented Windsor from qualifying for the unlimited spousal deduction for federal estate taxes.1 Section 3 of DOMA defines “marriage” as a “legal union between one man and one woman as husband and wife” and “spouse” as “a person of the opposite sex who is a husband or a wife.”2 As a result, Windsor was required to pay $363,053 in federal estate taxes. If federal law accorded their marriage the same status as opposite-sex marriages, Windsor would have paid no federal estate taxes on Spyer’s estate.

In November 2010, Windsor filed suit in the U.S. District Court for the Southern District of New York seeking a full refund of the federal estate tax imposed on Spyer’s estate and arguing that Section 3 of DOMA violated the Equal Protection Clause of the Fifth Amendment.3 The government initially defended DOMA, but in February 2011, Attorney General Eric Holder announced that the Department of Justice (DOJ) would no longer defend its constitutionality.4 Holder stated courts should apply a heightened standard of scrutiny to classifications based on sexual orientation and that Section 3 is unconstitutional under that standard. Despite asserting the law’s unconstitutionality, Holder simultaneously explained that President Obama informed him “that Section 3 [would] continue to be enforced by the Executive Branch,” thereby refusing to refund Windsor the taxes paid.5 Shortly after Holder’s announcement, the District Court permitted the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to intervene to defend the statute’s constitutionality. In June 2012, the District Court granted summary judgment in Windsor’s favor, holding that Section 3 of DOMA violated the Equal Protection Clause because no rational basis existed to support it.6

BLAG appealed to the U.S. Court of Appeals for the Second Circuit. The Second Circuit affirmed, concluding “homosexuals have been the target of significant and long-standing discrimination in public and private spheres[.]”7 The court classified such individuals as part of a quasi-suspect class and stated that any law restricting their rights is subject to intermediate scrutiny.8 Because DOMA’s classification of same-sex spouses was not substantially related to an important government interest, the Second Circuit held that Section 3 of DOMA violated the equal protection clause and is unconstitutional.9

Both Windsor and the DOJ filed petitions for certiorari with the U.S. Supreme Court. In December 2012, the Supreme Court granted certiorari to determine whether Section 3 of DOMA violates the Fifth Amendment’s equal protection clause; whether the Executive Branch’s agreement with the lower court that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide the case; and whether BLAG has Article III standing in the case. In February 2013, the Obama Administration formally endorsed same-sex marriage rights and encouraged the U.S. Supreme Court to hold Section 3 of DOMA as unconstitutional.10

The Windsor decision
The Supreme Court’s highly anticipated decision was two-fold: the Court had jurisdiction to consider the merits of the case; and Section 3 of DOMA was unconstitutional as a deprivation of the equal liberty of same-sex couples that is protected by the Fifth Amendment.11

Justice Kennedy, writing for the 5-4 majority, focused the standing analysis on two principles: the jurisdictional requirements of Article III and the prudential limitations on its exercise. The executive branch’s decision not to defend the constitutionality of Section 3 did not deprive the District Court of jurisdiction because the government continued to deny refunds and to enforce the law. Thus, Windsor’s ongoing inability to obtain a refund allegedly required by law was a “concrete, persisting, and unredressed” Article III injury in fact.12 But even when Article III requirements are satisfied, prudential considerations demand “concrete adverseness which sharpens the presentation of issues[.]”13 One consideration is whether adversarial presentation of the issues is secured by “the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act.”14 Despite the government’s agreement with Windsor’s position, the Court determined it was not deprived of jurisdiction because BLAG’s “sharp adversarial presentation of the issues satisfie[d] the prudential concerns[.]”15

It is difficult to foresee the implications of the standing analysis because, in permitting Windsor to be heard on the merits, the Court stated the case was “not routine” and presented “unusual and urgent circumstances” warranting review.16 The Court reasoned Windsor was of immediate importance to the federal government and to hundreds of thousands of persons, and its dismissal would result in extensive litigation involving the more than 1,000 federal statutes and regulations under DOMA’s control. The legal community may have to wait until future controversies present the Court with another opportunity to more clearly define what circumstances qualify as “unusual and urgent circumstances” when the adversarial nature of the parties is in question.

Justice Kennedy cited Loving v. Virginia and Sosna v. Iowa in explaining that the definition and regulation of marriage has traditionally been within the authority and realm of the states.17 As it pertained to Windsor and her wife, Thea Speyer, New York viewed the limitation of marriage to heterosexual couples to be an unjust exclusion. It began recognizing same-sex marriages in 2008 and formally amended its laws to permit samesex marriage in 2011. The Court found such actions to be a proper exercise of New York’s sovereign authority.

DOMA sought to impose restrictions and to disable the very class of persons that New York sought to protect. The Court noted DOMA’s demonstrated purpose is “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”18 It “writes inequality into the entire United States Code” and tells same-sex married couples “their otherwise valid marriages are unworthy of federal recognition.”19 The Court declared Section 3 of DOMA as unconstitutional and invalid because “[n]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws sought to protect in personhood and dignity.20

There are more than 1,000 federal laws and regulations that provide benefits to married couples. And now, same-sex couples who are married in states that permit or recognize same-sex marriage may receive all of these federal benefits.

Despite the Supreme Court’s favorable ruling for same-sex couples in states where marriage is currently recognized, same-sex couples who live in states like Ohio-that neither permit nor recognize same-sex marriage, domestic partnerships, and civil unions-will continue to face unequal treatment and experience substantial legal headaches. Section 2 of DOMA still stands in the wake of Windsor, and that section allows states and other U.S. territories to deny recognition of same-sex marriages that originated in other states or territories. Thus, if a same-sex couple decides to marry in Vermont but live in Ohio, the couple may only qualify for very limited federal benefits.

The federal government typically defers to the states in determining whether a couple’s marriage is valid; there is no universal rule across all federal agencies. Some agencies, such as the Internal Revenue Service, Social Security Administration, and Veterans Affairs, follow the “place of domicile” standard and look to the laws of the state where a couple lives.21 Other agencies, including Citizenship and Immigration Services and the Department of Defense, follow a “place of celebration” standard and look to the state where a couple lawfully married. It is clear the State of Domicile standard will result in federal agencies denying crucial benefits to married samesex couples living in Ohio. But if federal agencies adopt the State of Celebration standard, same-sex married couples would be eligible for all federal benefits regardless of where they reside. Marriage equality advocacy groups are already pushing for agencies to adopt the State of Celebration standard to provide clarity and stability to same-sex couples, employers, agencies and others. Assuring same-sex couples have fair access to federal marital protections will likely require Congressional action and/or formal rule-making by federal agencies.

The California marriage case: Hollingsworth v. Perry
In November 2000, California voters passed Proposition 22, which amended the state’s Family Code by defining “marriage” as a union between one man and one woman.22 In May 2008, the California Supreme Court invalidated Proposition 22, holding that it violated the due process and equal protection guarantees of the state constitution.23 Following the court’s decision, five California voters collected signatures for a referendum, Proposition 8 (“Prop 8”), to amend the California Constitution to provide “only marriage between a man and a woman is valid or recognized by California.”24 After a contentious campaign, 52.3 percent of California voters approved the amendment in the November 2008 election.

In May 2009, two same-sex couples— Kristin Perry and Sandra Stier, and Jeffrey Zarillo and Paul Katami—filed suit under 42 U.S.C. §1983 in the U.S. District Court for the Northern District of California after being denied marriage licenses.25 The couples named California officials responsible for enforcing state marriage laws as defendants and alleged Prop 8 violated the Fourteenth Amendment. Because California officials originally named in the suit refused to defend Prop 8, the District Court permitted the original proponents of Prop 8— and other individually-named proponents—to intervene under Federal Rule of Civil Procedure 24(a) to defend the action. In August 2010, the District Court held that Prop 8 violated the due process and equal protection clauses of the Fourteenth Amendment and permanently enjoined its enforcement.26

The proponents appealed to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit stayed the District Court’s injunction pending appeal and certified a question of standing to the California Supreme Court. It asked the state court to determine whether the proponents had “a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity,” which would permit them to defend the law when state officials refuse to do so.27 The California Supreme Court ruled the proponents had standing to defend Prop 8. It reasoned that when public officials decline to defend a ballot initiative, “the official proponents of a voter-approved initiative measure are authorized to appear and assert the state’s interest in the initiative’s validity[.]”28

In February 2012, the Ninth Circuit affirmed the lower court’s decision, ruling Prop 8 violated the Fourteenth Amendment’s Equal Protection Clause.

After the Ninth Circuit denied rehearing and temporarily stayed its ruling to allow an appeal to the U.S. Supreme Court, the proponents filed their petition of certiorari. In December 2012, the Supreme Court granted certiorari to determine whether the proponents have standing under Article III, §2 of the U.S. Constitution; and whether Prop 8 violates the Fourteenth Amendment’s Equal Protection Clause.

The Perry Decision
Unlike Windsor, Perry did not pass jurisdictional muster. The Supreme Court held the proponents lacked standing; therefore, neither the Supreme Court nor the Ninth Circuit had jurisdiction to decide the case on the merits.29 Chief Justice Roberts, writing for the 5-4 majority, delivered the Court’s analysis in three parts.

First, the Court held that the proponents’ general interest in vindicating the constitutional validity of a state law was insufficient to satisfy Article III’s case or controversy requirement. To have standing, a party “must seek relief for an injury that affects him in a ‘personal and individual way.’”30 The Court acknowledged the California constitution and its election laws gave the proponents a “unique, special, and distinct role in the initiative process,” but once voters approved Prop 8, the initiative became “a duly enacted constitutional amendment.”31 The proponents have no role in Prop 8’s enforcement, and thus, they cannot have a personal stake in defending it.

Second, the Court looked to basic agency principles. The proponents argued the California Supreme Court’s decision authorized them to act “as agents of the people of California.”32 But the Court emphasized that the California Supreme Court’s ruling only stands for the proposition that, as far as California is concerned, the proponents may defend Prop 8. The proponents are not agents of the state, are not public officials, and owe no duty to the people of California. “They are free to pursue a purely ideological commitment to the law’s constitutionality” without reference to considerations such as changes in public opinion.33

Third, the Court emphasized the question of standing in federal court “is a question of federal law, not state law.”34 A state cannot override settled federal law merely because it believes a private party has standing “to seek relief for a generalized grievance[.]”35

Because the Supreme Court determined the Ninth Circuit lacked jurisdiction to hear the case, and because California officials only defended Prop 8 at the trial level, the District Court’s decision striking down Prop 8 was restored. But it was possible the Perry decision and the resulting restoration of same-sex marriage would be limited to the plaintiffs named in the suit or to the county where the suit was brought. Immediately following the decision, however, California Attorney General Kamala Harris urged the Ninth Circuit for prompt action and promised California residents she would make certain all California counties were prepared to issue licenses to same-sex couples. Two days after the Supreme Court released its decision, the Ninth Circuit reinstated same-sex marriage in California for the first time since 2008. The Perry plaintiffs were among the first same-sex couples to marry that same day.

Although Perry may be widely recognized by laypersons as the “gay marriage case,” it is likely that the legal community will more commonly cite to it as a standing case. The Article III case or controversy requirement is a fundamental legal principle, serving a crucial role in litigation by requiring federal courts to only hear cases in which the parties have a sufficiently personal stake in its outcome. Perry serves as a reminder to Ohio practitioners that even if the Ohio Supreme Court determines a party has standing in a given case, federal courts need not, and likely will not, defer to the state court’s decision when evaluating standing or jurisdictional issues in federal court.

The future of same-sex marriage
Although the Court’s decisions in Windsor and Perry are not as far-reaching as many same-sex marriage advocates had hoped, the decisions still represent an enormous victory for LGBT individuals nationwide, as well as an addition to the Court’s jurisprudence preserving procedural principles. For those in favor of same-sex marriage, the next step is challenging state laws that currently prohibit same-sex marriage—such as provisions of the Ohio Constitution and R.C. 3101—and that deny marriage equality to Ohio’s same-sex couples. As Justice Scalia acknowledged in his dissent in Windsor, it is only a matter of time before such state laws are declared unconstitutional.36

Author bios
Kelly Albin serves as Associate General Counsel for Explorys. Her practice focuses on regulatory compliance, employment issues, and administrative policy. Explorys is a value-based healthcare network and data analytics company that was recently recognized as an enterprise analytics market leader in the KLAS Business Intelligence Perception 2013 Report.

Alana Jochum is an associate attorney at Squire Sanders (US) LLP. Her practice focuses on complex civil litigation, including product liability and commercial disputes. Since 2009, Squire Sanders has proudly achieved a 100 percent rating in the Corporate Equality Index, published annually by the Human Rights Campaign, which advocates for workplace equality for LGBT employees.

1 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). 2 Id. at §3.
3 Windsor v. United States, 833 F. Supp. 2d 394, 397 (S.D.N.Y. 2012).
4 Letter from Eric H. Holder Jr., Attorney General, to John A. Boehner, Speaker, U.S. House of Rep., at 5 (Feb. 23, 2011).
5 Id.
6 Windsor, 833 F. Supp. 2d at 402.
7 Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012).
8 Id.
9 Id. at 188.
10 See Pet’r’s Br. 12-307, Feb. 2013.
11 United States v. Windsor, No. 12-307, slip op. at 13, 26 (U.S. June 26, 2013).
12 Id. at 6.
13 Id. at 10.
14 Id.
15 Id. at 11.
16 Id. at 12-13.
17 388 U.S. 1 (1967) (invalidating laws prohibiting interracial marriage); 419 U.S. 393 (1975) (noting domestic relations is “regarded as a virtually exclusive province of the States”).
18 Windsor, No. 12-307 at 22.
19 Id. at 23.
20 Id. at 26.
21 It is important to note that although the IRS generally follows the State of Domicile standard, there is no statute or regulation requiring this approach. The IRS has recognized common law marriages for tax purposes so long as the marriage is valid in the “state of celebration.” See Am. Civil Liberties Union, et al., “Federal Taxes, LGBT Organizations Fact Sheet Series: After DOMA What It Means for You” (2013).
22 California Family Code §308.5.
23 See In re Marriage Cases, 183 P.3d 384 (2009).
24 Cal. Const. art. I, §7.5 [or Official Voter Information Guide, Cal. General Election, at 54 (Nov. 4, 2008)].
25 Perry v. Schwarzennegger, 704 F. Supp. 2d 921, 928 (N.D. Cal. 2010).
26 Id. at 1004.
27 Perry v. Brown, 671 F.3d 1052, 1070 (9th Cir. 2012).
28 Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P.3d 1002 (2011).
29 Hollingsworth v. Perry, No. 12-144, slip op. at 2 (U.S. June 26, 2013).
30 Id. at 7 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1 (1992)).
31 Id. at 8.
32 Id. at 14.
33 Id. at 16.
34 Id.
35 Id. at 17.
36 Windsor, No. 12-307 at 24 (Scalia, J., dissenting).



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