Windsor v. United States

for a writ of Corby’s petition granting Miranda station, given was she where corpus is REVERSED. habeas by Mason recognized As warnings. chronol- of this implication plain

Ryan, Corby which of that the substance

ogy was to the present unable

argues he was im- Corby believed had Burnett

jury: murder when in Mohammed’s her

plicated cannot It therefore accused him. first

she from Corby precluded was be said WINDSOR, in her Offi Edith Schlain facts from jury the to the “expos[ing] the Es Capacity as Executor cial draw appropriately jurors could which the Spyer, Plaintiff- Thea Clara tate of reliability of’ to the relating inferences Appellee, Arsdall, Burnett, Van she as whether specifically S.Ct. accusa- for his him retaliation accused America, STATES UNITED there Consequently, her. against

tion Defendant-Appellant, Corby’s Confrontation no violation rights. Clause Advisory Group Legal

Bipartisan Representatives, House United States that no constitu we hold Because rvenor-Defendant-Appel Inte occurred, need not con we violation tional lant. any error was harmless. sider whether however, 12-2335-cv(L), court note, that the district Nos. We Docket 12-2435(Con). error stan harmless an incorrect applied doubt) (harmless a reasonable beyond dard Appeals, United States 557- Corby, F.Supp.2d in this case. Circuit. Second appeal on direct the test 58. While was harm error whether constitutional 27, 2012. Argued: Sept. doubt, Chap see beyond less reasonable 18, 2012. Decided: Oct. California, 386 U.S. man v. (1967), in decid L.Ed.2d prison state claims

ing federal habeas

ers, we deference afford because courts, an error harmless we “find

state injurious ef

unless it had substantial jury’s determining or influence in

fect Pliler, Fry v.

verdict.” (cita L.Ed.2d 16 marks omit quotation internal

tions and

ted).

CONCLUSION Corby’s argu- all of have considered

We to with- find them be appeal

ments on order court’s The district

out merit. brief; Kircher,

Nelson, Kerry on the W. Pittard, Davenport, William Christine Tatelman, Walker, Mary B. Beth Todd Counsel, United States Office of General Washington, of Representatives, House counsel), DC, Intervenor-Defen- dant-Appellant. Weiss, Rifkind, Paul, A. Kaplan,

Roberta LLP, York, & New Wharton Garrison (Andrew Ehrlich, Janghor- J. Jaren N.Y. Paul, Weiss, Rifkind, bani, Wharton & LLP, York, NY, James D. Garrison New Saxe, A. American and Rose Civil Esseks Union, York, NY, New Liberties Mel- Goodman, Eisenberg, Arthur issa Hirose, York Mariko New Civil Liberties Foundation, York, NY, on Union New brief), Appellee. for Litchfield, CT, McCarthy, P. Vincent for College of amicus curiae American Pedia- in of support tricians Intervenor-Defen- danL-Appellant. A.

Joseph Campbell, Defending Alliance Scottsdale, AZ, Freedom, for amicus curi- in Douglas sup- Frederick Foundation ae Intervenor-DefendanL-Appellant. port of Noland-Heil, American Center Cecilia Justice, Beach, Virginia Law & VA for (Erik Zimmerman, Jay Alan Sekulow and Roth, for J. American Center Law Stuart Justice, Beach, and Wash- Virginia & VA brief), DC, on the for amici curiae ington, Attorneys Former General Edwin Meese in of support III and John Ashcroft Inter- venor-Defendant-Appellant. Zoeller, General, Attorney

Gregory F. (Thomas Indiana, Indianapolis, IN of State Delery, Acting Assistant At- Stuart F. Fisher, General, H. Solicitor Ellen Mei- M. General, torney Department United States General, laender, Attorney Deputy on the (Michael Justice, Jay Washington, of DC Indiana, brief), of for amici curiae States brief), Flentje, E. Singer, August on the Arizona, Colorado, Alabama, Alaska, Geor- Defendant-Appellant. for Idaho, Kansas, Nebraska, gia, Michigan, Oklahoma, Carolina, PLLC, Dakota Clement, South South Paul Bancroft D. (H. Virginia support in of Intervenor-De- Washington, Christopher Bartolo- DC mucci, fendant-Appellant. and Nicholas J. Dugan, B. Conor (Francis Baker, Paulson, Organization Caputo, K. National N.Y. F.

Joshua Susan (William Washington, brief), Marriage, City for DC C. on for amici curiae Duncan, Foundation, Lehi, York, Marriage City Law New the Council of the of New UT, brief), York, for curiae Na- amicus R. Bloomberg, Michael His Offi- Organization Marriage sup- Mayor tional for Capacity City cial as New York, port Intervenor-Defendant-Appellant. Quinn, Christine C. Her Offi- Capacity Speaker cial the Council of Fitschen, Legal The National Steven W. City of York in of Plain- Support New Foundation, Beach, VA, Virginia for ami- tiff-Appellee. Women America cus curiae Concerned Wachtell, Wolinsky, Lipton, Marc Rosen support Intervenor-Defendanb-Ap- Katz, York, (Jonathan & New N.Y. pellant. M. Moses, Schwartz, Kevin Ap- S. Luke M. Sheehan, F. William Goodwin Procter brief), pling, on the for amicus curiae the (Andrew LLP, Washington, DC S. Hud- Partnership City for New York in Support son, LLP, Washington, Goodwin Procter Plaintiff-Appellee. Gilfoyle, F.P. DC and Nathalie American B. Goldberg, Suzanne Columbia Law Association, Psychological Washington, York, School, NY, New for amicus curiae DC, brief), for on the amici curiae the Sexuality Columbia Law School & Gender Association, American Psychological Support Law Clinic in Plaintiff-Appel- Pediatrics, Academy American lee. Association, Psychiatric American Association, Psychoanalytic

American Connors, Catherine R. Pierce Atwood National Association of Social Workers LLP, Portland, ME, for amici curiae His- City Chap- and its New York and State in Support Plaintiff-Appellee. torians of ters, and the York Psychologi- New State Nemetz, LLP, R. Mayer Miriam Brown cal support Plaintiff-Ap- Association in of (Kathleen Washington, Connery DC Dawe pellee. Mayer Michael B. Kimberly, and Brown Sommer, Legal Susan L. Lambda De- LLP, DC, Washington, and Heather C. Fund, Inc., York, fense & Education New Sawyer, on Judiciary, Committee John (Timothy N.Y. Fisher S. and Brian P. Conyers, Jr., Nadler, Ranking and Jerrold Rice, LLP, Hartford, English, McCarter & Members, DC), Washington, for amici curi- CT and Shannon P. Minter and Christo- ae Members of the of Repre- U.S. House Stoll, pher F. National Center for Lesbian sentatives, Support in of Plaintiff-Appel- Francisco, CA, Rights, brief), San on the lee.

for amici curiae Bar Associations and Pub- Berner, Nicole Washington, G. DC Organiza- lic Interest and Legal Service (James AFL-CIO, B. Coppess, Washing- Support tions in of Plaintiff-Appellee. ton, DC, Szymanski, Change Patrick Damm, Melveny

Matthew F. O’ & Win, DC, Washington, O’Brien, and Alice (Dawn LLP, York, Myers New N.Y. Sesti- Association, National Education Washing- Portnoi, to, Lucas, Dimitri D. Amy and R. ton, DC, brief), on the for amici curiae O’Melveny LLP, Myers Angeles, Los & American Federation of Labor and Con- York, NY, brief), CA and New on the for gress Organizations, Industrial Change amici Family curiae Law in Professors Win, and National Education Associa- Support Plaintiff-Appellee. in support Plaintiff-Appellee. tion Cardozo,

Michael A. Corporation Joseph Tringali, Coun- F. Simpson Thacher & (Alexandra York, York, City LLP, York, sel of the of New New Bartlett New N.Y. Schneiderman, Attorney Gener- Davis, Eric T. on the S. Nicholas Pitney and C. York, York, N.Y. New al, of New State Advoca- and Service brief), curiae for amici General, Sorrell, Attorney (William H. Trans- Lesbian, and Bisexual Gay, cy for and Vermont, VT Montpelier, (SAGE), Senior National State Elders gender General, State of Attorney Society George Jepsen, American and Center Law Citizens brief) Hartford, CT, on Connecticut, Plaintiff-Appellee. support in Aging on York, New Ver- States of amici curiae for De- Legal NAACP Adegbile, P. Debo nei- support in mont, and Connecticut York, Inc., Fund, New & Education fense party. ther Klein- Boddie, Rachel M. (Elice C. N.Y. Civin, Tabacco, Joshua man, Ria A. Responsibili- Sloan, for Citizens Melanie & Education Defense Legal NAACP Washington, Washington, in ty and Ethics York, NY, Washing- Inc., and Fund, New Weismann, Re- (Anne for Citizens DC, L. Legal NAACP DC), amicus curiae ton, for Washington, in and Ethics sponsibility Inc., Fund, sup- Education & Defense Morrison, B. DC and Alan Washington, Plaintiff-Appellee. port School, Washing- Washington Law George LLP, Gray brief), curiae Wolkoff, & for amicus Ropes ton, DC, Harvey J. (Stuart and Ethics in W. Yothers York, Responsibility N.Y. for New Citizens LLP, Gray Bickett, party. & neither Ropes support of P. Washington Samuel M. Freeman York, N.Y. Steven New JACOBS, Judge, Chief Marnin, Anti-Defamation Before: M.

and Seth DRONEY, Judges. brief), Circuit NY, York, on the STRAUB League, New League, Anti-Defamation curiae amici part dissents Judge STRAUB Rabbis, American Conference Central opinion. separate in a part concurs Torah, Bend Beit Simchat Congregation Justice, Partnership for Arc: A Jewish JACOBS, Judge: Chief DENNIS Organiza- Zionist the Women’s Hadassah: surviv- sued as Edith Windsor Plaintiff America, Hindu American tion couple that a same-sex ing spouse of Founda- Foundation, Alliance Interfaith resi- and in 2007 in married Canada Justice League, the tion, Citizens Japanese her time of York in New of dent Church United Ministries: and Witness de- 2009. Windsor was in death spouse’s Wom- of Jewish Christ, Counsel National spousal deduction of the benefit nied Way Founda- en, the American for People 26 U.S.C. under estate taxes federal Judaism, for Women’s tion, Reform for Union of the 2056(A) solely Section because Judaism, § and Conservative League for (“DOMA”), 1 Marriage Act of of Defense support in Judaism of Reform Women “marriage” the words § defines U.S.C. Plaintiff-Appellee. way in law a federal “spouse” Nelles, & Cromwell L. Sullivan Sharon from Service Revenue the Internal bars Cohen, (H. Rodgin York, LLP, N.Y. New or the spouse Windsor as recognizing Wagener, Eitel, H. William Mitchell S. § is as of text The couple as married. Iskelov, Volik, Sulli- G. Diana H. Heather follows: York, LLP, N.Y. New Cromwell van & any Act meaning of determining the Field, Meaghan Brill W. and Laura regulation, any ruling, or of Congress, LLP, of Angeles, Los Klieger & Kendall Brill various adminis- of the interpretation Profes- brief), amici curiae CA, for on the agencies trative bureaus Law Welfare Family and Child sors “marriage” States, word United Plaintiff-Appellee. support only legal nonmoving party.” union means between one Church American Kerik, man and one woman as husband and Knights the Ku Klux Klan v. wife, (2d Cir.2004). “spouse” only the word refers to a F.3d opposite person of the sex who is a A preliminary concerning align- issue or a husband wife. parties ment of the has appeal been § issue U.S.C. At is Windsor’s claim presented by States, motion. The United $363,053, refund in the amount defendant, initially named as the sole con- constitutionality which turns on the of that its ducted defense the statute in the law. section up point. February district court to a On we For reasons follow hold that: filed, three months after suit was standing I. in this action Windsor the Department of Justice declined to de- York, predict because we that New which thereafter, Act fend the and members of permit did not to be Congress took it. steps support until licensed would nevertheless Bipartisan Legal Advisory Group of the recognized have Thea Windsor and Clara United States House of Representatives Spyer as at the time of Spyer’s married (“BLAG”) retained counsel and since then death in so that was a Windsor sur- laboring has taken the oar in defense of spouse viving under New York law. the statute. The United States remained a party, switching active as sides to advo- II. Windsor’s suit is not foreclosed cate statute be ruled unconstitu- Nelson, Baker tional. (1972), L.Ed.2d which held that the use of the traditional of marriage definition Following the district court’s deci for a regulation state’s own of marriage sion, appeal, BLAG filed a notice of as did equal status did not protection. violate the United States in its role as nominal subject III. Section 3 of DOMA is defendant. BLAG moved this Court at scrutiny intermediate under the factors appeal outset strike the notice City enumerated Cleburne Cle- filed realign United States and to Center, Living burne appellate parties to reflect (1985), 87 L.Ed.2d 313 prevailed United States in the result other cases. advocated the district court. The mo IV. The statute does not withstand tion is Notwithstanding denied. the with that review. advocacy, drawal itsof the United States DOMA, of

continues enforce Section 3 On June the why United States Dis- which indeed is Windsor does not trict Court for the Southern money. District of have constitutionality her The of J.) (Jones, New York granted summary the statute will a impact have considerable judgment in of favor in a many operations Windsor thor- on of the United States. ough States, opinion. Chadha, 919, Windsor v. 931, United See v. 462 INS 103 (S.D.N.Y.2012). (1983) (“When F.Supp.2d 2764, 833 394 77 The L.Ed.2d 317 court ruled that DOMA agency Section 3 of violat- an of party the is a United States equal ed protection the because there was to a in Congress case which the Act of it no rational support unconstitutional, basis to it. Id. at 406. administers held it is “We review a grant district court’s of sum- an aggrieved party purposes for of taking novo, mary judgment construing de an appeal.... agency’s the as an status record in the most light aggrieved favorable to party ... is not altered

177 court not. may agree with the that the district did We decline the Executive fact that certify. in is un- question statute holding that the

constitutional.”). First, signaled of Appeals very ques-

its to decide this disinclination Godfrey tion. it on When elected decide DISCUSSION an the Court ground, alternative sufficient a expressed preference and ex- Appeals I issue pectation would be decided of federal estate purpose For the legislature: ... by the New York “[w]e taxes, of domicile the law of the state Legislature hope that will address persons ordinarily determines whether two 377, controversy.” Godfrey, 13 N.Y.3d at married at the time of death. Eccles were 272, 920 We 892 N.Y.S.2d N.E.2d 328. Comm’r., 1053-54 v. 19 T.C. up Ap- hesitate to serve the Court of (1953); 58-66, Rev. Rul. 1958-1 C.B. 60 peals question reluctant (“The marital status of individuals de a prudential answer for reason. recognized state law is in termined under Second, rulings in of New York’s Federal income administration appellate courts are useful and termediate laws.”). Spyer’s death tax At time unanimous on this It is a “well- issue. not yet New York did license principle ruling established that the of an separate A same-sex itself. appellate intermediate court is a da state standing for in this question—decisive ascertaining tum law which is not state recog whether 2009 New York case—is disregarded by to be court unless into in marriages entered nized same-sex persuasive it is convinced other data question jurisdictions. That other highest court the state would presented Ap to the New York Court Statharos v. New York decide otherwise.” Spano, peals Godfrey 13 N.Y.3d Comm’n., City Taxi and Limousine (2009). 272, 920 N.E.2d 328 892 N.Y.S.2d (internal (2d Cir.1999) quota F.3d However, was able to resolve the court omitted). ellipsis tion marks and Three finding “it grounds, that case on other have appellate New York’s divisions four argu unnecessary to reach defendants’ recognized York for concluded that New mar ment that New York’s common-law eign marriages before the state same-sex recognition proper rule is a basis for riage marriage statute 2011. See passed its challenged recognition of out-of-state Ranftle, In re Estate 81 A.D.3d marriages.” Id. at 2011) (Windsor’s (1st Dep’t N.Y.S.2d N.E.2d 328. N.Y.S.2d Ca Department, recognizing home ques marriage); faced nadian Lewis N.Y. State When we are with Serv., Dep’t. law 60 A.D.3d tion New York that is decisive but Civil (3rd 2009), unsettled, Dep’t may “predict” what the N.Y.S.2d we aff'd nom., Godfrey, sub is, any rulings grounds law of its other consulting state’s 272, 358, 920 N.E.2d and trial N.Y.3d 892 N.Y.S.2d appellate intermediate courts Monroe, 328; 50 courts, Cnty. Martinez v. may certify question or the we (4th 189, Dep’t 740 N.Y.S.2d Appeals. the See A.D.3d 850 New York Court 2008). cases, Mallela, Two these Lewis and Auto. Ins. Co. v. State Farm Mut. (2d Cir.2004). Martinez, died 500, Spyer were decided 372 F.3d 505 BLAG before 5, the February 2009. Given consistent urges certify question, observ that we decisions, see need to ing option that have view of these we no that this is an we 178 guidance by’

seek here. Because Windsor’s cided dismissal.” Alexander v. Ca (2d Cir.2010) hill, 79, have un- n. marriage recognized would been 598 F.3d 7 89 Spyer’s 173, der (quoting Bradley, New York law the time of Mandel v. death, (1977)). 176, 2238, standing. she 97 S.Ct. has 53 L.Ed.2d 199 question whether the federal govern

II may constitutionally ment define in as it does 3 of Section DOMA is suffi Nelson, In Baker an appeal v. from a ciently question distinct from the in Baker: Supreme finding Minnesota Court decision marriage may whether same-sex be consti right no marriage, same-sex Su- tutionally by the restricted states. After preme summary Court issued dismissal all, actually were Spyer Windsor and mar ques- “for want substantial of a federal case, in this eye ried at least of New 810, 37, tion.” 409 U.S. 93 S.Ct. 34 York, they where Other have lived. courts (1972). L.Ed.2d 65 The Minnesota Su- likewise concluded that Baker not does preme Court had held equal that “[t]he equal protection control review of DOMA protection clause of the Fourteenth for these reasons.1 Amendment, clause, process like the due not offended state’s classification might Even if Baker have had reso persons marry.” authorized to Baker v. 1971, nance Windsor’s case it does Nelson, 310, 313, 291 Minn. 191 N.W.2d “ today. federal had ‘[I]nferior courts (Minn.1971). BLAG, 185 According to best adhere to that if the view the Court compels Baker Congress the inference that unsubstantial, a question branded as may prohibit same-sex except develop remains so when doctrinal way same under law without of- ” ments indicate otherwise.’ Hicks v. Mi fending Equal Protection Clause. We randa, 2281, disagree. (quoting L.Ed.2d Port Auth. long

“The Court has rec Bondholders Protective Comm. v. Port of ognized Auth., (2d precedential value of a N.Y. 387 F.2d 263 n. 3 Cir.1967) summary J.)) added). pre dismissal limited to ‘the (Friendly, (emphasis presented necessarily cise issues forty Baker, de- years after there have See Dep’t. of HHS, v. Mgmt., F.Supp.2d Massachusetts U.S. Pers. 982 n. 5 (1st Cir.2012) F.3d (finding (N.D.Cal.2012) ("The Baiter failure of the federal permitted equal protection long review so as government recognize Ms. Golinski's mar arguments did not "rest on a constitutional riage provide and to benefits does not alter Windsor, right marriage”); to same-sex law.”); the fact that she is married under state ("The F.Supp.2d at 399-400 case before the Dragovich Treasury, v. Dept. No. 4:10- present Court does not the same issue as that cv01564-CW, 944, 951-53, F.Supp.2d presented Accordingly, in Baker.... after (N.D.Cal. WL May *6-7 comparing the issues Baker and those in 2012); Cnty. Orange, Smelt v. case, the instant the Court does not believe F.Supp.2d. (C.D.Cal.2005), 872-74 vacat 'necessarily question that Baker decided' the part (9th grounds, ed in on other 447 F.3d 673 of whether DOMA violates the Fifth Amend Cir.2006); In re Kandu, 315 B.R. 135-38 Clause.”); Equal ment’s Protection Pedersen (Bankr.W.D.Wash.2004); Perry see also 3:10-cv-1750, Mngmt., Pers. No. Office of Brown, (9th 671 F.3d 1082 n. 14 Cir. - F.Supp.2d -, -, 2012 WL 2012) (finding preempt that Baker did not (D.Conn. 31, 2012) ("DOMA July at *11 im case, Proposition consideration of because pacts obligations, federal benefits and but question constitutionality "the prohibit authorizing does not a state from forbidding marriage, marriage” state's ban on same-sex was not Baker."); court) added). case in Golinski v. (emphasis U.S. before Office of

179 why not reason Baker does Supreme stitute another to the changes manifold been case. disposition our this jurisprudence. foreclose equal protection Court’s 1971, in “inter Baker was decided When in suggested has dicta The First Circuit not in the scrutiny” yet mediate suspect a classifi- recognition of new Boren, Craig v. See vernacular. Court’s “imply[] an in this context would cation 451, 190, 218, L.Ed.2d 50 97 S.Ct. 429 U.S. Massachusetts, See overruling of Baker.” (coin J., (1976) dissenting) (Rehnquist, 397 reasons disagree at 9. We for two 682 F.3d scrutiny”). Classi “intermediate level ing not discuss. the First Circuit did illegitimacy on sex fications based First, marriage, legiti- it comes when See quasi-suspect. yet not deemed were interests of a state differ regulatory mate 275, 259, 264-65, 99 v. 439 U.S. Lalli Lalli government. from those of the federal (1978) 518, (applying 58 L.Ed.2d 503 S.Ct. is “an area that Regulation to a classification scrutiny intermediate virtually a ex- long regarded been describing how illegitimacy, and on based Sosna v. province of the States.” clusive had been used heightened scrutiny Iowa, 404, 553, 393, 42 419 U.S. 95 S.Ct. 1976); starting such classifications (1975). very long It has for L.Ed.2d 532 Richardson, 677, 411 U.S. v. Frontiero ... has [the] been settled that State “[t]he (1973) 1764, 682, 36 L.Ed.2d 583 93 S.Ct. right prescribe absolute the conditions (identifying as a sus sex (plurality opinion) upon relation between which 197-98, Boren, class); 97 429 U.S. pect created, its citizens shall be own scrutiny intermediate (applying 451 S.Ct. may which it be dissolved.” causes for sex); United based classification 714, 734-35, 24 Pennoyer Neff, v. 575, 515, 116 U.S. Virginia, v. States (1878), overruled on other L.Ed. 565 (1996) (Scalia, 2264, 135 L.Ed.2d S.Ct. Heitner, grounds by U.S. Shaffer J., (summarizing that sex- dissenting) (1977). 186, 2569, 53 97 S.Ct. L.Ed.2d analyzed with classifications were based Therefore, scrutiny heightened analy- our 1970’s).2 rational review before basis marital under sis of DOMA’s classification “a yet had not ruled that classi The Court analysis law distinct from undertaken for fication of [homosexuals] whether mari- necessary determine rational actually lacked a its own sake” would survive tal classification of state Evans, Romer U.S. basis. scrutiny. such (1996). L.Ed.2d 855 116 S.Ct. Second, decision to And, Court’s government could lawful Romer apply rational review in does existence or basis ly [homosexuals’] “demean recognize imply to us refusal destiny by making pri their control their quasi-suspect as a class. See crime.” Lawrence v. homosexuals vate sexual conduct a Massachusetts, litigants Texas, 682 F.3d at 9. quasi-sus- (noting that had abandoned their Romer 156 L.Ed.2d 508 court pect argument after trial deci- equal protection ar there was “tenable” Romer, laws, n. 517 U.S. at 640 choosing sion. See gument against such but Hardwick, (Scalia, J., dissenting). are S.Ct. 1620 We overturn Bowers v. instead to satisfied, reasons, that Baker has for these 92 L.Ed.2d (1986)). bearing on case. changes no doctrinal con- These helpful analyzing cy especially whether are have been 2. While other classifications made in DOMA merits inter- suspect the classification quasi-suspect or over the deemed illegitima- scrutiny. mediate years, to add sex and the decisions 180 persuasion

III view places the burden of law, challenging a must party who an deciding equal protection “In disprove “‘every conceivable basis which challenge per a statute classifies ” Doe, might support it.’ Heller v. 509 U.S. purpose for receiving sons [federal] 320, 2637, 113 125 257 S.Ct. L.Ed.2d benefits, required, long arewe so as the (1993) (quoting v. Lehnhausen Lake Shore or suspect quasi- classifications are not Co., 356, 364, Parts Auto 410 U.S. 93 S.Ct. suspect infringe and do not fundamental (1973)). 1001, 35 L.Ed.2d 351 So a party rights, uphold =to legisla constitutional urging any absence rational basis relationship tion if it bears a rational to a up heavy takes load. That would seem governmental objective.” legitimate in to bedrue law passed this case—the (2d Sullivan, Thomas 922 F.2d 136 bipartisan majorities “ overwhelming Cir.1990). course, ‘a ... Of bare desire Congress; both houses of it varying has harm politically unpopular group can impact on than more a thousand federal legitimate not constitute a government in ” laws; and' the of marriage definition it Evans, terest.’ Romer v. 517 U.S. affirms has been long-supported and en- 634-35, 116 S.Ct. 134 L.Ed.2d 855 couraged. (1996) Moreno, (quoting Dep’t Agric. v. 528, 534, 413 U.S. 93 S.Ct. hand, On the other several have courts (1973)). L.Ed.2d 782 So while rational Supreme read the recent Court’s cases respectful, basis is indulgent review this area to suggest that rational basis is not meant be “toothless.” Schweiker review should more demanding be when Wilson, 221, 234, patterns there are “historic of disadvan 67 L.Ed.2d (quoting tage by the group adversely suffered af Lucas, Mathews v. Massachusetts, fected the statute.” See (1976)). L.Ed.2d 10-11; U.S., 682 F.3d at Able v. 155 F.3d (2d Cir.1998); The court ruled that DOMA vio- United States v. district (2d Then, Cir.1995) (Calabresi, the Equal lated Protection for Clause want 56 F.3d Windsor, , rational basis. concurring). Proceeding along J. F.Supp.2d But the lines, existence those the district court case rational basis Section 3 of DOMA is and the First Circuit in Massachusetts closely argued. prof- BLAG its amici both adopted more exacting rational basis justifications fer several that alone or in Massachusetts, review for DOMA. See tandem are said to constitute sufficient F.3d at 11 (describing its “more careful reason for Among the enactment. these assessment”); Windsor, F.Supp.2d fisc, reasons are protection uniform 402 (noting that analysis “rational basis administration of federal law notwithstand- context”). vary by can argument, At coun ing recognition of in sel for wittily BLAG characterized this others, some states but not the protection analysis form of as “rational plus basis of traditional marriage generally, and the scrutiny intermediate Arg. minus.” Oral encouragement “responsible” procrea- Tr. 16:10-12. tion. not expressly sanctioned such

Windsor her modulation the level of vigorously amici review; argue rationally that DOMA not rational pro basis related discussion goals. these Rational largely basis re- con has confined been to concur

181 minority politically is “a or think it er the class dissenting opinions.3 We ring and Immutability and powerless.” Id. lack is some doctrinal say to that there is safe necessary political strictly not power in are instability this area. identify suspect factors to a class. See Cle- permutation no of rational Fortunately, burne, 10, at 442 n. 105 S.Ct. 3249 473 U.S. heightened if scruti- review is needed basis (“ ‘[Tjhere’s not left the immuta- much available, as it in this case. We ny is is ”) Ely, bility theory, (quoting J. there?’ join to issue with the decline therefore (1980)); Cle- Democracy and Distrust 150 dissent, explains why 3 of which Section burne, 24, at 472 n. 105 3249 473 U.S. S.Ct. may rational basis re- withstand DOMA J., (Marshall, concurring in dis- part and view. (“The senting ‘political powerless- part) in relevant, that Instead, group may of a be but re ness’ we conclude that necessary, as the gender factor is neither requires 3 of DOMA view of Section sufficient, demonstrate, nor as the scrutiny. The cases heightened Supreme Court illustrates.”); example Nyquist whether a of minors uses certain factors to decide Mauclet, 1, 11, 432 9 n. qualifies quasi-sus a v. U.S. 97 S.Ct. new classification (1977) A) 2120, (rejecting 53 L.Ed.2d 63 They include: whether the pect class. alienage that historically “subjected argument to did deserve class been Gilliard, scrutiny not immuta- discrimination,” v. 483 strict because was Bowen — Pedersen, ble); 3008, see at F.Supp.2d 107 97 L.Ed.2d also S.Ct. U.S. *13; Golinsky B) -, (1987); 2012 at the class has a WL 485 whether 983; v. “frequently F.Supp.2d Kerrigan at defining characteristic Health, Pub. 289 Conn. ability perform or Comm’r. relation [a] bears (2008). Cleburne, 167-68, A.2d 407 society,” Neverthe- U.S. contribute C) less, immutability 440-41, 3249; political power and are whether the at 105 S.Ct. immutable, indicative, “obvious, and we consider them here. or dis class exhibits case, justify heightened this all four factors tinguishing define characteristics A) Bowen, scrutiny: group have homosexuals as group;” them as a discrete D) 3008; dis- historically persecution wheth- endured 107 S.Ct. U.S. Lawrence, searching inquiry to be more invoked. Compare 539 U.S. at J., (“When (O'Connor, concurring) are thus left in the dark on Lower courts a politi to harm a law exhibits such desire important question, and this Court remains applied group, we cally unpopular have employing, or its decisions unaccountable for searching form rational basis review more searching refusing employ, particularly Equal such laws under strike down scrutiny.”) Murgia, Bd. Ret. and Mass. v. Clause.”) and U.S. R.R. Ret. Bd. Protection 307, 321, 96 S.Ct. L.Ed.2d Fritz, 453, 66 449 U.S. 101 S.Ct. J., (Marshall, ("[T]he (1976) dissenting) J., (1980) (Brennan, dissenting) L.Ed.2d 368 silentio, rejected, its albeit Sub Court has however, cases, (“In the courts must other rationality most deferential statements Cleburne, probe deeply.”) City with more assessing validity under standard Center, Living Tex. Cleburne Equal of much noneconom- Protection Clause 459-60, 3249, 87 L.Ed.2d 313 Bd., legislation.”). see U.S. R.R. Ret. ic But J., (Marshall, concurring part ("The at 176 101 S.Ct. 453 n. (“The dissenting part) to acknowl refusal dissenting opinion about the comments in something ra edge more than minimum proper for which to look for the correct cases view, is, my tionality here review is work protection equal rational- statement unfortunate____[B]y failing to articulate the standard, limit about which cases basis today's ra justify 'second order' factors cases, just comments in review, are that: earlier provides no the Court tional-basis dissenting opinion.”). determining principled when foundation for B) crimination; homosexuality entirely has no rela- a “history sufficient document — Pedersen, aptitude ability to tion to contribute to of discrimination.” See C) -, society; F.Supp.2d are a at homosexuals discernible WL at group distinguishing with (summarizing majority non-obvious *21 that “the characteristics, especially in the subset which meaningfully cases have considered marriages; those who enter same-sex question likewise held that ho- [have] D) class a politically remains weakened mosexuals as a class experienced have minority. discrimination”). long history of

A) History of Discrimination B) Ability Relation to easy It is to conclude that homosexuals easy Also to in decide this case is wheth- history have suffered a of discrimination. er the class “frequently characteristic amici Windsor several labor to estab bears to ability perform [a] relation to or history, lish and document this but we Cleburne, society.” contribute to 473 U.S. think is not much Perhaps debate. 440-41, 3249; Frontiero, at 105 S.Ct. see telling proof the most dis animus and (“[W]hat S.Ct. 1764 against crimination in this homosexuals differentiates from non-suspect sex such that, is country many years and in statuses as intelligence physical disabili- states, many homosexual conduct was ty, and aligns it with the recognized sus- criminal. These laws had the imprimatur criteria, pect is that the sex characteristic Bowers, Supreme Court. See frequently no ability bears relation to to 2841; U.S. at 106 S.Ct. see also Law perform society.”). or contribute to rence, 539 U.S. at S.Ct. Cleburne, Supreme Court ruled that (noting that such laws homo “demean[ed heightened scrutiny was inappropriate be- sexuals’] existence [and] their controlled] cause “those are mentally who retarded destiny”). ability have reduced cope with and argues BLAG discrimination everyday function world.” 473 U.S. against homosexuals differs from 105 S.Ct. 3249. The Court em- against racial minorities and women be- ployed reasoning similar respect with cause as a “homosexuals class have never classifications, age finding heightened True, been politically disenfranchised.” scrutiny appropriate was not for mandato- but the difference is not decisive. Citizens ry retirement laws “physical because abili- born out wedlock have never been inhib- ty generally declines age” with and such in voting; yet ited has requirements reasonably “serve[d] re- applied scrutiny intermediate in cases of move from ... service those whose fitness Lalli, illegitimacy. generally See Lalli for uniformed work presumptively has di- 58 L.Ed.2d 503 minished with age.” Murgia, 427 U.S. at (1978). Second, argues that, BLAG unlike 316, 96 S.Ct. 2562. classes, protected homosexuals have “suffered discrimination for longer than There is no such impairment here. history has been recorded.” But whether There are distinguishing some characteris- such in Babylon tics, discrimination existed is such as age handicap, or mental neither here nor there. may arguably BLAG concedes an ability inhibit individual’s that homosexuals have endured society, discrimi- to contribute at least some country nation since at least the respect. homosexuality But is not one of Ninety years 1920s. of discrimination is them. The experi- aversion homosexuals Dist., Montgom or Mad River Local School nothing aptitude to do with ence Ohio, ery County, performance. (1985) (Bren 1373, 84 L.Ed.2d 392 argue understand BLAG do not We nan, /., from certiora dissenting denial Rather, suggests that BLAG otherwise. (“[H]omosexuals ri) significant constitute “the whether proper consideration country’s pop minority insular of this char- ‘distinguishing turns classification ulation.”). to interests State relevant acteristics ” quoting authority implement,’ This often has the consideration

Cleburne, “immutability.” at 105 S.Ct. 3249. in terms 473 U.S. couched its that Thus, urges couples argue that same-sex BLAG and amici sexual BLAG fixed, necessarily sug discharge to fam- orientation is not ability a diminished have time, may change it raising gesting over ily the procreation roles (for continuum, overlap a precedential ap- range along BLAG cites no children. bisexuals). But the is broader: its test support to plication that standard immutable, “obvious, or there are whether is with interpretation, inconsistent Frontiero, distinguishing that define See, characteristics 411 e.g., cases. U.S. actual Bowen, group.” a discrete 483 ... See (distinguishing that at 93 S.Ct. 1764 (emphasis at add U.S. S.Ct. 3008 sex, intelligence, bearing on unlike no ed). badge” necessary. No “obvious is ability to general to contribute soci- one’s Lucas, Mathews See event, ety). the abilities or inabili- (1976). 96 S.Ct. L.Ed.2d upon the ties BLAG bear whether cited alienage, illegiti based Classifications (the step of scrutiny law second withstands macy, origin subject all to and national are upon than the level analysis) rather Cleburne, scrutiny, at heightened Jeter, scrutiny to Clark v. apply. Cf. 440-41, these though even 456, 461, 108 100 L.Ed.2d U.S. themselves, characteristics do declare (1988) (defining the test for intermedi- may suppressed and often be disclosed or scrutiny a is ate as whether classification to preference.4 What seems as a matter important gov- to an “substantially related whether the characteristic of the matter is interest”). ernment when it is class calls down discrimination C) Distinguishing Characteristic manifest. may homosexuality illegitimate is a suf- Thus birth person

We conclude a ficiently keep private, to define that status and ensure that discernible characteristic minority sign v. no outward discloses the status a discrete class. See Rowland change Alienage illegitimacy actually physically class be unable or are sub must Pedersen, ject People change. defining See trait their class. mask the - F.Supp.2d at -, ("The WL *23 Su operations change can have their sex. preme Court has held resident aliens ordinarily citi- Aliens can become naturalized suspect despite ability the constitute a class illegitimate can zens. The status of children be Additionally, opt voluntarily. class out of the People changed. frequently can hide their illegitimate may subject to as be one's status customs, origin changing their national change strictly a and is therefore not immuta names, At their or their a associations.... characteristic.”) (internal citation omit ble then, minimum, Supreme willing Court is ted); Army, F.2d see Watkins v. U.S. also effectively trait immutable if to treat a as J., (Norris, (9th Cir.1989) concur difficulty, changing great it would involve ("It by 'immutability' ring) clear major change requiring physical or such [Supreme] never meant strict im Court has change identity."). a traumatic mutability that members of the sense Bowen, 602, 107 settings workplace, or or on See S.Ct. 3008. social person subway. ap- But when such political power, may Without minorities be plies Security benefits on the Social to protect unable themselves from discrim (for example), illegit- parent death majoritarian at the of. ination hands The imate status becomes manifest. char- political process. that homo We.conclude necessarily in order acteristic is revealed significantly sexuals -are still encumbered right. Similarly, a legal to exercise sexual respect. in this preference necessarily disclosed when question is not The whether homosexu- persons apply two sex for a same (as als achieved political have successes over they legally per- license are York), in New years; they clearly ques- mitted do when have. surviving of a spouse they tion strength is whether have spousal seeks the benefit deduction politically protect wrong- themselves from (as here). Windsor does ful discrimination. When the Court ruled that sex-based classifications argues BLAG that classification based subject heightened scrutiny sexual orientation would be more were to in “amorphous” may 1973, than discrete. It be acknowledged the Court that women the category that exceeds the number of already major political had achieved victo- persons whose sexual orientation is out- Frontiero, 685, 411 ries. See U.S. at 93 wardly “obvious, immutable, or distin- S.Ct. 1764. The Nineteenth Amendment guishing,” thereby predictably and who had in been ratified and Title VII undergo surely discrimination. But that is already had employ- outlawed sex-based illegitimacy also true ori- and national ment. See 78 Stat. 253. The Court was gin. Again, what matters here is whether persuaded nevertheless that women still the characteristic invites discrimination political lacked in adequate power, part it when is manifest. “vastly they underrepre- because were

The class affected Section 8 of decisionmaking sented this Nation’s composed entirely DOMA is persons councils,” including presidency, the the the same who each sex have married oth- Court, legislature. and the er. persons Such constitute a subset of Frontiero, at n. U.S. 93 S.Ct. homosexuals; larger category but as argument, counsel for BLAG conceded at parallels There are between status nothing amorphous, capricious, there or women at time of Frontiero and tentative their about sexual orientation. today: position homosexuals their “has im- Oral Arg. Tr. 12:11-14. Married same-sex decades,” markedly in couples proved recent but Spyer like Windsor and are the population law, they pervasive, most although visible still “face at times they subtle, are foremost in reviewing mind when more ... po- discrimination DOMA’sconstitutionality. Frontiero, litical arena.” U.S. 685- 86, 93 S.Ct. 1764. It is to say difficult therefore

We conclude that sexual orien- “under-repre- whether homosexuals are sufficiently tation is a distinguishing char- in positions power authority sented” identify acteristic minority the discrete knowing without their number relative to class homosexuals. population. the heterosexual But it is safe D) Political Power say seemingly small number Finally, acknowledged so we homosexuals situated consider whether homosexu- minority. als are a politically powerless hostility attributable either to ex- IV hostility keeps them or to a eludes private which, for preference their sexual — To intermediate withstand amounts to much same purposes, our be scrutiny, a classification must “substan Moreover, the same considerations thing. important government to an tially related degree expected suppress some Jeter, can be interest.” Clark U.S. activity inhibiting the kind of 100 L.Ed.2d 465 political S.Ct. (1988). political “Substantially related” means that advances open association “ ‘exceedingly per explanation must be Rowland, 470 agendas. U.S. See Virginia, 518 States v. suasive.’” United (Brennan, J., dissenting S.Ct. 135 L.Ed.2d U.S. certiorari) (“Because of the from denial of Mississippi Univ. (quoting for opprobrium often immediate and severe Hogan, 458 Women so homosexuals once against manifested (1982)). 3331, 73 “The L.Ed.2d 1090 publicly, group members of this identified genuine, hypothe must justification be powerless pursue their particularly are response post sized invented hoc arena.”). rights openly political Id. litigation.” sum, a posi- are not in homosexuals primary arguments BLAG advances two protect themselves from adequately tion to First, why Congress enacted DOMA. majorita- discriminatory wishes interests,” in- “unique cites which public. rian maintaining defi- clude a consistent federal

[*] ^{[*] [*]} nition avoiding “the unknown marriage, protecting consequences of a fisc, and sup of these four factors Analysis a foundational social novel redefinition of that our conclusion homosexuals ports Second, argues that institution.” BLAG subject height to that is compose encourage class to Congress enacted the statute that scrutiny. “responsible procreation.” argument, We further conclude At ened (rather BLAG’s counsel all but conceded is than sus quasi-suspect the class may for enacting these reasons DOMA weight the factors based on pect) scrutiny. Oral withstand intermediate recog classifications analogy and Tr. Arg. 16:24-17:6. suspect quasi-suspect. and While nized target sig have homosexuals been A) Maintaining Defini- “Uniform long-standing discrimination nificant and Marriage tion” of spheres, this mis private public Congressional Record Statements require not sufficient to ‘our treatment “is ” eligi- intent to enforce uniform express an v. exacting scrutiny.’ Trimble Gor most by marital insur- bility benefits don, 1459, 97 52 S.Ct. receive—or ing couples same-sex (1977) (quoting 31 Mathews L.Ed.2d across all lose—the same federal benefits Lucas, 427 96 49 U.S. S.Ct. However, the on unifor- emphasis states.5 (1976)). L.Ed.2d Congress and mity suspicious because next determine whether step The Supreme historically Court de- have laws, re- scrutiny state domestic relations survives intermediate ferred to DOMA of their variations. irrespective view. legislators couples different example, con- moved between states with certain were For See, e.g., policies marriage. administratively diffi- on same-sex cerned that it would be (2004) (Sen. Inhofe). Cong. changes as same-sex Rec. 15318 cult to deal with benefit uniformity un-

To the extent there has ever been rationale is further rule in federal “uniform” or “consistent” dermined inefficiencies that it creates. it concerning marriage, is that mar found, law a district court in Circuit As virtually riage province is “a exclusive simpler was more consistent —for —and Sosna, 419 U.S. at the States.” government the federal to ask whether a 553. As the S.Ct. couple married under the law of the states, of the “the at time emphasized, domicile, adding state of rather than “an Constitution, possessed adoption criterion, requiring additional full the federal subject marriage power over the government identify and exclude all delegated Constitution divorce.... [T]he marital from unions federal rec- authority no to the Government of the — Pedersen, ognition.” F.Supp.2d at subject marriage United on the States -, *48; Golin- WL see Haddock, divorce.” Haddock ski, (“The F.Supp.2d at 1001-02 pas- 575, 26 L.Ed. sage DOMA undermined actually ad- added), (emphasis overruled on oth consistency requiring ministrative grounds by er State Williams v. North time, federal government, for the first Carolina, which state discern definitions of (1942). L.Ed. 279 DOMA was therefore recognition are entitled to federal unprecedented an intrusion “into an area not.”). which are regulation.” traditional state Massa chusetts, 682 F.3d 13. This is a reason unprece Because is an DOMA upon to look Section 3 of DOMA with a of longstanding dented breach deference eye. precedent ... cold “The absence of that singles federalism out same-sex instructive; is itself of an ‘[discriminations only as the inconsistency (among especially suggest unusual character care many) in requires state law that a federal ful consideration determine whether uniformity, rule achieve the rationale they are obnoxious to the constitutional premised uniformity is not an exceed ” Evans, provision.’ Romer persuasive ingly justification for DOMA. 633, 116 (1996) S.Ct. 134 L.Ed.2d 855 (quoting Louisville & Elec. Gas Co. B) Protecting the Fisc Coleman, 32, 37-38, 277 48 U.S. S.Ct. (1928)).

72 L.Ed. 770 professed goal Another is Congress government by limiting save resources the Moreover, sweep arguably DOMA’s cre- government beneficiaries of marital bene- anomaly ates more discord and than uni- 104-664, (1996), H.R.Rep. fits. No. at 18 formity, as many amici observe. Because in 1996 reprinted U.S.C.C.A.N. 2922. only single a aspect DOMA defined prudence undoubtedly impor- Fiscal is an law, standing domestic relations it left all government tant interest. Windsor other in the inconsistencies laws of the states, certain amici contest whether the measure such minimum age, consanguini- as net divorce, Treasury; will achieve a benefit to the ty, paternity. See Br. of Ami- in budget, ci but matters the federal Con- Family Curiae Law Professors Support- (if gress has ing prerogative Petitioner to err error it (noting at 12-13 that “the is), government and cannot be always accepted expected prophesy federal accurately. future But ways defining pa- states’ different offering rental status” and ex- Court has held that of wel- saving “[t]he numerous amples pa- critical an in- justify differences state fare costs cannot otherwise policies). rental vidious classification.” Graham v. Rich-

187 C) Preserving a Traditional Under- 29 ardson, 91 S.Ct. Marriage standing of omit- (quotation marks L.Ed.2d ted). observed, “ex- court As the district justify Congress undertook to DOMA as any arbitrarily group chosen cluding preserving a for traditional mar measure government program Cong. an riage from as institution. Rec. individuals lineage But of a legal 14951. “[a]neient Wind- government resources.” conserves give immunity does not concept [a law] sor, (quotation F.Supp.2d at lacking from attack for a rational basis.” marks). Heller, A 113 S.Ct. 2637. U.S. Owens, Citing Bowen v. U.S. to justify tradition hard fortiori (1986), 90 L.Ed.2d 316 106 S.Ct. demanding meeting the more test hav distinction that DOMA draws the BLAG to an ing important a substantial relation benefits from same-sex did not withdraw government appeals interest. Similar before spouses; since DOMA was enacted rejected made and in litiga tradition were permitted concerning anti-sodomy same-sex tion laws. See Lawrence, 577-78, 539 U.S. at state, prevent the ex- operated DOMA (“ governing fact that the ma ‘[T]he people who never tension of benefits jority traditionally in State has viewed a However, enjoyed Bowen was de- them. practice particular as immoral is not a did grounds rational basis not cided on pro a law upholding sufficient reason classification. Id. at involve an invidious history hibiting practice; neither nor Moreover, 349-50, DOMA S.Ct. prohibiting tradition could save law mis considered a benefit withdraw- properly attack.’”) cegenation from constitutional functionally eliminat- al sense Bowers, 216, 106 (quoting recognition federal of all longstanding ed J., (Stevens, dissenting)) (emphasis properly are ratified under marriages that added). (and benefits state law—and preserving if were it- Even tradition detriments) recogni- that come with that goal, DOMA is important self an not tion. it. to achieve As district court means broad, Furthermore, touch- DOMA is so whether “because decision of found: laws, a thousand federal ing more than marry couples can is left substantially states, not, related to fiscal strictly speaking, that it is DOMA does marriage ‘preserve’ institution of as Responsi- As for the amicus Citizens matters. man a woman.” Wind- one between a and bility Washington in demon- and Ethics sor, at 403. F.Supp.2d strates, a number of feder- impairs DOMA (involving bankruptcy and conflict- al laws of a traditional un Preservation of-interest) nothing do with that have to is derstanding marriage therefore not the Br. of Amicus Curiae public fisc. See justification persuasive an exceedingly Ethics in Responsibility Citizens for and DOMA. 5-11, tran-

Washington at 18-23. DOMA D) Encouraging Responsible Procrea- pub- legislative intent to conserve scends tion lic resources. three

Finally, presents BLAG re reasons, is not these DOMA why advances the lated reasons DOMA For important gov substantially childrearing”: goals “responsible related to because procreation DOMA subsidizes protecting fisc. ernment interest only opposite-sex couples can procreate equal protection violates and is therefore “naturally”; biological DOMA subsidizes unconstitutional. (for

parenting more less the same rea- son); optimal and DOMA facilitates the V parenting arrangement of a mother Our straightforward legal analysis side- agree promotion pro- father. We steps point the fair same-sex important government creation can be an history unknown and tradition. But But objective. we do see how DOMA state) (federal or law is not concerned with substantially related to it. holy matrimony. Government deals with proffered All three rationales have the marriage aas civil status —however funda- they defect: are same cast incentives York mental —and New to ex- elected couples, for heterosexual incentives that tend status to same-sex A couples. not affect in any way. DOMA does may state enforce and couple’s dissolve a any provide does not DOMA incremental marriage, sanctify but it cannot or bless it. opposite-sex couples engage reason for that, pair go For must next door. “responsible procreation.”6 Incentives for opposite-sex couples marry pro CONCLUSION (or not) create were same after DOMA reasons, For the foregoing we AFFIRM as they enacted were before.7 Other grant of Windsor’s motion for sum- courts have likewise been unable to find mary judgment. even rational connection between encouragement DOMA and of responsible STRAUB, Judge, dissenting Circuit

procreation child-rearing. See Massa part and concurring part: chusetts, 682 F.3d at (underscoring 14-15 the “lack of demonstrated connection INTRODUCTION

between DOMA’s treatment same-sex Pedersen, lated 2012 WL ted); Windsor, of encouraging procreation. heterosexual ening the bonds couples and its DOMA is — important government therefore ^[*] marriage”) F.Supp.2d asserted and benefits to at *40-43. ^[*] F.Supp.2d not substantially goal (citations at — - —, ^[*] society strength interest 404-05; omit re- nized her wife’s death. For the reasons that New States, opinion of whether the State of dismiss I concur I part. respectfully York Windsor’s with those Court of appeal (1) dissent in part and concur decline deny taken Appeals parts BLAG’s motion to New York of majority certify the time of the United question recog- follow,

DOMA’s classification of I majority’s dissent from the hold- spouses was not substantially related to an ing that DOMA is unconstitutional under important government interest. equal Accord- the Fifth protection Amendment’s ingly, we hold that Section 3 of DOMA guarantee.

6. argument withdrawing "[T]he drat suggesting the des- the To extent that BLAG is ignation 'marriage' couples of from same-sex Congress' might actually laws sexu- influence on promote strength could its own the orientation, or support al there is no evidence to stability opposite-sex of relationships marital (and farfetched). that claim it strikes us as any footing reality.” Perry lacks such in Brown, (9th Cir.2012). 671 F.3d institution of the traditional mar- unconstitu- mote holds DOMA majority The my Baker dictates decision. riage. tional, the law which formalizes a federal in federal of the understanding Furthermore, argued it is here we Presi- Congress, in the the context extant binding precedent this disregard to are the of Judiciary at time dency, the and rational traditionally applicable the ba- and and, say, I dare enactment DOMA’s instead, and, review now sis standard of history. If this our nation’s throughout suspect type a new classification create I it changed, believe understanding is be a in heightened scrutiny level of requiring to do people American so. is for the definition of mar- respect the federal Supreme The Court has never done riage. Forty ago, the United States Su- years so, reminding wary us to while be creat- es- presented with the preme Court any new classification itself ing such challenge we have here. sentially identical in I having any not created decades. be- law was The then DOMA-like Minnesota so in imprudent lieve it would be to do this highest court be- upheld in that state’s case. Eleven of our nation’s Cir- marry right it cause found have not an Appeals Courts utilized cuit a to sex was not fundamen- regard without scrutiny elevated form of as to sexual or- not thrust was right tal law’s recently, discrimination. Most ientation The irrational or invidious discrimination. to the the First Circuit went extreme held that the Supreme of Minnesota new, a creating increased level rational defining mar- applicable Minnesota statute analysis. appears to be This basis a a man and riage a union between case which Court is asked to first United States not violate the woman did more, majority the same or and the do appeal to the Upon their Constitution. scrutiny apply the first intermediate Court, plain- Supreme United States definition of invalidate the federal mar- jurisdictional squarely tiffs’ statement a man riage as between and woman. mar- claimed that Minnesota’s same-sex does The discrimination this case not pro- their riage prohibition equal violated suspect quasi-sus- recognized involve Court, Supreme The rights. tection It is squarely classification. about pect appeal for “want of a sub- dismissing the preservation of traditional institu- question,” obviously found stantial federal procreation tion its infirmity in that DOMA- no constitutional legitimate children. DOMA centers law. am to held like Minnesota I unable beyond mere go interests that moral state as it did had it concluded that the Minne- group. of an excluded DOMA’s disapproval a time sota was unconstitutional —at law to be reviewed on basis classification is accept required appel- it when was of whether has a rational relation The Court made challenge. late standard, Utilizing that I legitimate end. decision, and has never walked merits constitutional. conclude that DOMA is its away suggested it or from ever rational standard is most defer- The basis determination disposition elided merits to the ential determinations Con- It further procedural may conclusory on some basis. be are gress. Such disposition, that such a albeit in the fact- instructed us to be tried traditional rejects challenge public summary, presented process. policy choice oriented made jurisdictional in the and is bind- forth DOMA to be statement set DOMA, And, Judiciary. as the ing Congress, lower courts. the federal for mar- Congress has set the boundaries recently O’Connor remind- as Justice with American soci- pro- riage keeping rational reasons exist to ed us that —all being the ety’s marriage riage. of a as It chose to let issue evolve historical view a This is not between a man and woman. The society. Congress within American Congress signaled the the its first time accomplished its task in manner which eligibili- of intentions in various definitions respect principle continues to the of feder- children, ty purposes to mar- federal as free alism. The states remain to define riage, and domestic relations. These have choose, they pursuant as to marriage at with laws the times conflicted state but And, our forty-one DOMA. of states con- always prevailed federal law has for feder- to as DOMA marriage tinue define does. purposes. al of totality The the is sufficient to foregoing of Congress

The had the benefit advice hold DOMA constitutional under the ra- Department from the of Justice that majority tional basis standard. Even the The Congress DOMA is constitutional. opinion, ultimately holding while DOMA codify always decided to what had been higher of unconstitutional under a level implicit history in federal law. The of appears scrutiny, to imply DOMA legislation respect federal of the mean- passes (Maj. rational basis atOp. review. ing marriage spouse was never even 180.) suggested mean other than anything to the My final observation relates to At- the

lawful union of one man and one woman torney General’s current position. His as- for all purposes. federal The nation’s tra- sertion sexual suspect orientation is a ditional understanding was memorialized classification and that fails pass DOMA to Congress DOMA. explicitly sought to minted, scrutiny strict recognize purposes recently for federal is and is signifi- understanding cance of our historical an contrary body established cases value, joining biological mainstream contrary. Attorney po- General’s component the marriage relationship unprecedented sition is its departure legal responsibility rearing the off- Department long- from the of Justice’s spring Congress of that union. The refer- standing policy defending federal stat- sanction, enced its intention to for federal disagrees utes even if the President aas society’s purposes, approve desire to the matter of policy. man and union long woman term as the bottom, At the issue here

ideal beget which to rear and children. level purposes, for federal Indeed, high state courts—as in New legitimate not other interests. The Con- legislature’s York—have credited their ra- gress President formalized in promote tional decisions to the welfare of DOMA, opposite-sex marriage purposes, children via for federal laws. basic hu- Further, articulated, Congress has as an- man condition of a man joining DOMA, other legitimate reason for long-term relationship woman in a and the the federal fisc as well as America’s de- only inherently capable one which is right equitable sired definition mar- generation humanity. another producing riage, government but rather the federal understanding Whether that is to continue codify entitled to a single definition of is for American people decide via historically understood. their in electing Congress choices Judiciary the President. It is not for the The Congress was uniform and consis- And, to search for new tent. chose standards which not to rush ahead with negate expression redefinition a time all a rational when the states nation utilized the traditional definition of mar- via Congress. agencies and of the trative bureaus

DISCUSSION States, “marriage” the word United Impact Origin of DOMA and The 1. only legal union between one means response in 1996 in DOMA was enacted and one husband man and woman to the exclusion possible end to the only “spouse” refers wife and the word marriage in civil from couples same-sex sex is a person opposite to a who Lewin, 74 Haw. In Hawaii. Baehr husband or wife. (1993), the Hawaii P.2d § provision 7. This articulates 1 U.S.C. couples denying same-sex held that Congressional recognition, pur- federal justified be under marry to must right the union a man marriage poses, further remanded for scrutiny, and strict a woman. and with this determi- consistent proceedings Judiciary The House Committee’s nation.1 House indicates that several Report The (the Report”) “House Report DOMA pass to Congress led DOMA. motivations of an “orchestrat- part Baehr as described “governmental It four interests identifies tradi- being waged against legal assault ed (1) defending legislation: this advanced marriage.” See tional heterosexual traditional, nurturing the institution and (1996), 104-664, re- at 2-3 H.R.Rep. No. (2) marriage; defending tra- heterosexual 2905, 2906- U.S.C.C.A.N. printed (3) morality; protecting notions of ditional (“House “H. Rep.”). or Report” sovereignty self-gov- democratic state and ernance; key provisions. preserving govern- Section and scarce DOMA has two section, 12-18.) (H. states: at Rep. ment resources.” the choice-of-law justifies as a Report also DOMA House State, possession of the territory, or No responsible “encourag[e] pro- to means tribe, be States, Indian shall or United child-rearing,” Rep. H. creation act, any public to give effect required way Congress’s “moral and as a reflect record, any oth- judicial proceeding or homosexuality, a moral disapproval State, territory, possession, or tribe er heterosexuality better com- conviction relationship per- respecting a between (especially Judeo- ports with traditional as a sex that is treated sons of the same Christian) (H. 16.) Rep. morality.” laws other of such under tribe, State, or a territory, possession, or range of federal laws Given broad arising from such relation- right or claim relevant, conse- marital status is which ship. In far-reaching. of DOMA are quences § ex- provision This U.S.C. 1738C. preventing surviving same- addition a sit- prevent desire presses Congress’s inheriting like from spouse sex Windsor forced to where one state would be uation tax, from an money property or free estate marriages performed recognize same-sex couples prevents same-sex married DOMA in a different state. recognized joint lessening filing tax burdens from 1(a)- section of the definitional returns, § Section tax see 26 U.S.C. DOMA, provides: (c); surviving spouse of a prevents the collecting Act from Social determining meaning benefits, see, e.g., Security survivor any ruling, regulation, Congress, or of 402; prevents § federal em- interpretation of the various adminis- U.S.C. marriage. legislative prohibition of same-sex law in marriage never Same-sex became Const, I, But, Baehr, because, § 23. did not Haw. art. following the Hawaii See Hawaii until after DOMA was enacted. for the occur allow Constitution was amended ” law,’ health the

ployees sharing governing “[a]n from their insur- and issue of fact ‘genuine’ medical is if ‘the is ance and certain other benefits such that evidence jury spouses.. with same-sex As result of reasonable could return verdict for ” DOMA, couples nonmoving party.’ are de- the Holtz v. married Rockefel (2d Cir.2001) other, Co., prived many ler rights, of lesser-known & 258 F.3d Inc., benefits, privileges including, (quoting Liberty Lobby, and inter Anderson v. alia, relating prop- benefits to intellectual ) . (1986) benefits; benefits; erty; housing veteran’s L.Ed.2d 202 (same-sex immigration spous- entitlements being dispute There no as to the materi- only legally spouses es are the married of matter, find, al facts in this I as a matter deporta- American citizens who can face law, that DOMA is constitutional. tion); employment private the benefits (including sector sick to care leave for III. The Precedential Effect of Baker Family under spouse one’s and Medi- Nelson Act); cal protections relating Leave and majority concludes Windsor’s domestic partner and intimate crimes and claim Supreme is not foreclosed family violence. summary Court’s dismissal Baker v. sum, codifies, In purposes DOMA of Nelson, statutes, regulations, and rulings, (1972). Baker, L.Ed.2d 65 a same-sex understanding marriage “only as couple seeking right marry chal- legal union between man and one one lenged a Minnesota law that limited mar- wife,” woman as husband and see 1 U.S.C. riage opposite-sex couples on the 7,§ and it reserves to each state the abili- grounds it process violated due ty to retain that policy definition as its if equal protection, unconstitutionally it chooses, it, the state so alter or to as it discriminated of sex. basis Baker § sees fit. See 28 U.S.C. 1738C. In en- Nelson, 291 Minn. 191 N.W.2d 185 DOMA, (1) therefore, acting Congress (1971). Court, The Minnesota maintained the status quo as the federal review, applying upheld rational basis purposes definition of for the right marry statute it because found the benefits; federal programs and regard, without to sex fundamen- recognized right any state to allow tal, marry and because who can classifying gays while, marry and lesbians to at the based on sex was not “irrational or invidi- time, same permitting other states to ad- ous discrimination.” Id. 187. The here to existing understandings their of Court reasoned unrealistic to “[i]t marriage. institution of think that the original draftsmen of our statutes, which date from territo- II. Standard of Review rial days, would have used the term” to a grant summary We review judg anything mean other than “the state of . ment de novo Bank N.Y. v. persons First union between the opposite Millennium, Inc., (2d doing, F.3d sex.” Id. at 186. In so the Court Cir.2010). Summary judgment appro support found the 1966 version of Web- priate only if “there genuine dispute is no ster’s New Dictionary, Third International as to material fact and the movant is fourth edition of Black’s Law Dictio- judgment Genesis, entitled to nary, as a matter of law.” Book Skinner v. 56(a). Oklahoma, Fed.R.Civ.P. A fact “if is material which declared “[m]ar~ ‘might riage affect the outcome the suit procreation under are fundamental to jurisdictional According to the statement and survival of the very the existence Baker, 541, in 1110, pre- the the appellants 86 of case 316 62 S.Ct. race.” U.S. sented, alia, question the of (invalidating Oklahoma's inter 1655 L.Ed. “[wjhether appellee’s refusal, pursuant Act under Criminal Sterilization Habitual statutes, marriage sanctify Equal Pro- Minnesota Amendment’s the Fourteenth Clause). appellants’ marriage because both are of tection rights violates the male sex their under rejected Supreme Court The Minnesota equal protection clause of Fourteenth v. Con- reliance Griswold petitioners’ (JA-695.) question Amendment.” The necticut, 1678, 14 U.S. 85 S.Ct. 381 Windsor, here, presented by can formu- be (1965), Loving Virgi- L.Ed.2d 510 lated in a similar fashion: strikingly nia, 1817, 18 388 87 S.Ct. L.Ed.2d U.S. 3 of the Defense Mar- Section “Whether (1967). Supreme The Minnesota 1010 riage pro- is consistent with the equal Act privacy right recog- held that the Court component tection the Fifth Amend- in was “inherent nized Griswold (DOJ ment Process Br. at Due Clause.” Loving relationship,” and that did marital 2.) petitioners militate in favor of because not merits, anti-miscegenation disposition statute ... Baker is a on the “Virginia’s certiorari, solely grounds on the of its mere denial Hicks v. Mi- was invalidated randa, Id. at 95 S.Ct. racial discrimination.” 186— patent (1975), any that in incon- ruling The concluded both L.Ed.2d Court sistent its must be a constitutional with terms avoided. “commonsense sense, by are summary a clear between courts bound “[L]ower there is distinction until such merely by decisions Court time as upon a martial restriction based (them) upon (they) fundamental the Court informs are race and one based Hicks, 344-45, The not.” Id. at 187. United difference sex.” (internal omitted). summarily quotation dis- Supreme States Court appeal the Minnesota Su- missed summary A means that “the dismissal ruling for “want of sub- preme Court’s was Court found the decision below U.S, Baker, 409 question.” stantial federal question no correct and that substantial 93 S.Ct. 37. Gressman, E. et merits raised.” al., 5.18, § equal p. Court Practice protection guarantee Supreme (9th ed.2007). Amendment, Roxbury Taxpay- See applies Fifth which also Cnty. Supervi- v. Del. Bd. government, identically functions ers Alliance federal sors, (2d Cir.1996) (recog- Protection Clause of the 80 F.3d Equal to the Amendment, applies nizing for want of substantial Fourteenth which dismissal Constructors, question as “a decision on the mer- the states. Adarand See case”); Pena, 200, 217, 115 its of the Auth. Bondholders Inc. v. Port (1995). Auth., Therefore, N.Y. Protective Comm. v. Port 132 L.Ed.2d (2d Cir.1967) (“[Un- n. applies to 387 F.2d 262 3 jurisprudence interpreting one until the any ruling Supreme less and Court should the other. It follows otherwise, inferior federal courts on a Amend- instruct Supreme Fourteenth had adhere to the view that if the equal challenge to the de- best protection ment applies question Court has branded a as unsub- nial of same-sex with stantial, equal except it remains so when doctri- equal protection to an chal- force otherwise.”); nal lenge developments of same-sex indicate the denial cf. (2d Hodgson, Doe v. F.2d the Fifth Amendment. under Cir.1973) (rejecting argument Baker, that sum- sor’s claim and those advanced mary dispositions “very have prece- little they are insignificant compared to the cen- significance” stating dential that “we tral fact present both cases equal are bound Court’s sum- protection challenges to laws prohibiting mary until affirmances such time as the recognition marriage entered not”) (inter- Court informs us that we are persons into two of the same sex. omitted). Thus, quotation nal Baker Thus, any distinctions do not render rejected squarely the pro- contention that sufficiently DOMA different from Minne- hibiting marriages same-sex equal violated sota’s law at the time of Baker protection.2 such that it can be said the issues in this case were not by before and decided the

Whatever factual differences exist be Supreme Court. The relevant facts of this tween the challenge to the Minnesota law case substantially are similar to those of presented in Baker and chal Windsor’s Baker, which necessarily decided lenge DOMA, they are too attenuated to state defining law marriage as a union remove the instant case from scope of between a man and woman does not vio- Baker’s precedential effect. Although the late the Equal Protection Clause. Baker facts in this case are not identical to those is the last word from the Supreme Court Baker, “precedential value of a dis regarding the constitutionality of a state missal for want of a substantial federal limiting marriage law opposite-sex cou- question beyond extends the facts of the ples Equal under the Protection Clause particular case to all similar cases.” binding Court, thus remains on this Court, Wright Cnty. v. Lane Dist. 647 F.2d given equal that the protection (9th component Cir.1981); see League also of the Fifth Amendment is identical to and Women Voters Nassau Cnty. v. Nassau coextensive with the Fourteenth Amend- Cnty. Bd. Supervisors, 155, 164 737 F.2d guarantee. ment (2d Cir.1984) (the court’s “responsibility in gauging summary disposition’s] [a authori Since Baker holds that may states use ty ... is to mark out the ‘reach and con the traditional definition of marriage for tent’ of prior disposition”). purposes state without violating equal pro-

The couple same-sex argued tection, Baker it necessarily follows that Con- that Minnesota’s exclusion of gress same-sex may define marriage the way same couples from the institution of civil mar- purposes federal without violating riage Equal violated the Protection equal protection. Clause See Equal Citizens for because it was discrimination (8th not rational- Bruning, Prot. v. 455 F.3d ly Cir.2006) related any legitimate (“In governmental nearly one hundred and interest. Forty years may passed, have fifty years since the Fourteenth Amend- but Windsor makes the today same claim adopted, ment was to our knowledge no (based on, alia, inter similar arguments Supreme Justice of the suggest- regarding the over-and under-inclusive- ed that a state statute or constitutional ness of the limitation on provision codifying the traditional defini- right rationale). vis-á-vis the procreation tion of marriage Equal violates the Protec- Whatever differences exist between Wind- tion Clause or provision other of legislation curtailing Supreme jurisdiction change does not this rule.” 16B appellate jurisdiction Miller, Court’s change al., did Wright Charles Alan & Arthur R. et precedential import summary disposi- (2d § Federal Practice & Procedure ed.2012). tions. [mandatory] appeal "Abolition of the Constitution.”); the is- close resemblance between McConnell States United (8th Cir.1976) in Baker presented sue and the claim ad- Nooner, 547 F.2d (Baker by scope vanced means that the Windsor curiam) adjudi an “constitutes (per question Baker raised controls binding the merits which cation on foreclosing appeal, Windsor’s claim. courts”); Adams v. How the lower is, validity That cases involve the both (C.D.Cal. erton, F.Supp. deprivation marriage couples’ same-sex 1980) controlling in case (finding Baker already presented rights, a to and question appealed denial spouse same-sex where adjudicated on the merits “im INS to be classified as with petition addition, if, held, Court. Baker de- relative”), aff'd, 678 F.2d mediate nying couples marry right same-sex (9th Cir.1982) (acknowledging n. 2 equal protection, does not it follows violate Baker); nature of Wilson precedential denying couples subset (M.D.Fla. Ake, 1298, F.Supp.2d 1305 354 (i.e., rights the associated rights) 2005) (Baker “binding precedent” is with with is also constitutional. This requiring effect” dismissal of “dispositive inescapable. conclusion sake of For the DOMA). challenge to equal protection completeness, in the that there is event any doubt that Baker forecloses holding of the Baker Windsor’s The correctness claim, I proceed now consider the mer- the squarely Supreme before placed its. jurisdictional that state- case’s Court summary The Court’s dismissal ment. Equal Principles IV. Protection question is

want of a substantial federal Analysis controlling precedent, a unless therefore “The Process the Fifth Due Clause of re-examined by Supreme until the every person Amendment assures the Hicks, 343-45, U.S. Court. laws, equal protection of the ‘which is es acknowledges “The Court neither 2281. sentially that persons a direction all simi that nor holds other courts should ever ” larly be alike.’ situated should treated have, that its recent conclude more cases States, 628, Able v. United 155 F.3d an earlier by implication, prece- overruled (2d Cir.1998) v. (quoting City Cleburne Rather, should dent. lower courts follow Ctr., Inc., Living Cleburne U.S. controls, leaving to directly the case which (1985)). 439, 105 3249, 87 S.Ct. L.Ed.2d 313 overruling its prerogative this Court Felton, Agostini decisions.” subject own of unequal When the treatment historically S.Ct. 138 L.Ed.2d a class has U.S. is member of that (1997).3 discrimination, object gov- been the Although questions may nated In we have that on the basis sexual orientation. noted Lawrence, being subsequent stop Supreme expressly when stated “insubstantial'’ Court indicate, developments doctrinal so Port Auth. present case ... does not involve ”[t]he Bondholders, 387 F.2d at 263 n. the Su- government give whether the formal must never, preme despite Court numerous recognition any relationship that homosex- developments forty years, in the last stated Lawrence, persons enter.” ual seek to holding I its in Baker is invalid. am not Consequently, 123 S.Ct. 2472. by arguments convinced Windsor’s that the changes Supreme there doctrinal are no Supreme Court’s in Romer decisions v. Evans implying jurisprudence Court that Baker is no eroded and Lawrence Texas have Baker's authority longer binding effect and Baker's longer sway. foundations such that no holds hinges in this therefore on whether the issues Romer, necessarily applied presented case to and decid- Supreme were ra- by scrutiny Supreme ed Court. tional basis to laws discrimi- employs conduct legislative policy ernment classification of determinations made alia, race, sex, alienage, nationality, inter in areas that neither affect fundamental ” illegitimacy closely rights proceed along associated with nor suspect lines.’ — inequality, “the Court has re- Id. at (quoting 113 S.Ct. 2096 New Dukes, quired higher degree justification than Orleans v. basis, (1976)).

a rational either strict or intermedi- 49 L.Ed.2d 511 scrutiny. ate scrutiny Under strict Unlike under heightened scrutiny, in a government test the must demonstrate equal protection rational basis analysis compelling need for the different treat- courts look “conceivable basis” for provision question ment and that the law, challenged not limited to those narrowly objective. tailored to achieve its articulated or even consistent with the scrutiny, Under intermediate govern- rationales offered legislature. ment must at least demonstrate Commc’ns, Beach 508 U.S. at substantially classification is related to an S.Ct. 2096.4 attacking Those the rationali important governmental objective.” Id. at ty legislative of a classification have the (internal omitted). 631-32 citations burden negative every “to conceivable ba suspect Where no classification is em- sis which might support it.” Lehnhausen ployed or right Co., fundamental infringed v. Lake Shore Auto Parts conduct, upon by government 356, 364, 1001, the consti- 93 S.Ct. 35 L.Ed.2d 351 (1973) (internal guarantee tutional of equal protection omitted). quotation “The satisfied where a that, classification bears a ra- presumes Constitution absent some relationship tional to an appropriate gov- reason to infer antipathy, improvi even Doe, ernmental interest. See Heller v. dent eventually decisions will be rectified 312, 320, 2637, 509 U.S. 113 S.Ct. 125 process the democratic judicial and that (1993). L.Ed.2d 257 In evaluating wheth- generally intervention is unwarranted no er the purposes asserted of a federal law matter unwisely may how we think politi rationally ends, are related to its we defer cal branch has acted.” Vance v. Bradley, to the judgment of Congress. Congres- 93, 97, 939, 440 U.S. 99 S.Ct. 59 L.Ed.2d (footnote sional omitted). enactments that do infringe 171 “[A] law upon a fundamental right employ a will be if sustained it can be said to ad suspect classification are entitled to “a legitimate interest, vance a government strong presumption of validity,” and must even if the law seems unwise or works to “ be sustained if ‘there is reasonably the disadvantage particular of a group, or conceivable state of facts that pro- could if the rationale for it seems tenuous.” vide a rational Evans, basis for the classifica- 620, 632, Romer v. 517 U.S. 116 ” 319-20, tion.’ at 1620, 134 (1996). Id. 113 (quot- S.Ct. 2637 S.Ct. L.Ed.2d 855 Under ing Commc’ns, Inc., FCC Beach framework, 508 the rational review where 307, 313, 2096, U.S. 113 S.Ct. “plausible L.Ed.2d there are reasons” Congres for (1993)). Rational action, basis in an review sional “inquiry court’s is at an equal protection analysis Fritz, does not author- end.” R.R. U.S. Ret. Bd. v. 449 U.S. “ ize judiciary 166, ‘the sit superlegis- [to] as a 101 S.Ct. 66 L.Ed.2d 368 (1980). lature to judge the wisdom or desirability This standard of para- review is “a Indeed, Communications, 4. in Beach rejected purpose regulation Su- pre- and the preme upheld challenged using law statutory sented a conflict in the scheme. Id. posited agency for a regula- reason at 113 S.Ct. 2096. tion, though Congress even previously had no, 528, 534, 413 U.S. 93 S.Ct. restraint.” Beach judicial digm (1973). Commc’ns., L.Ed.2d 782 113 S.Ct. 508 U.S. “[Cjourts ra- under compelled are challenged the discrimination Where legislature’s accept review to tional-basis by impermissible purposes motivated both is an im- even when there generalizations animus, attitudes, malice, negative {e.g., ends.” means and fit between perfect fear, group, the desire to harm a moral Heller, 113 S.Ct. 2637. permissible disapproval, ignorance) and guid- th[e] adherence to

“Only by faithful (under review, rational basis vir- purposes judicial re- in] ing principle [restraint tually any goal not forbidden the Con- preserve possible is it legislation view of stitution), may still be constitution- the law inde- rightful branch its legislative to the attitudes,” ally “negative valid. While ability function.” and its pendence “may accompa- often “fear” or other biases Commc’ns, 508 U.S. at Beach (and therefore unconstitution- ny irrational omitted). (internal quotation S.Ct. al) discrimination, presence their alone does not a constitutional violation make.” govern- legitimate a conceivable Having Garrett, Bd. Trs. Univ. Ala. v. alone, is, not sufficient mental interest 356, 367, L.Ed.2d rational review. To survive rational basis (2001). review, a ra- a law must also have basis legiti- to the asserted relationship

tional any single valid rationale is suf- Because assessing governmental interest. mate DOMA’s support ficient to constitutionali- relationship, of a rational ty, analyze only many possible the existence I inter- knowledge guided by the necessary courts should be ests as to sustain the law. See Inc., Commc’ns, review is “the most rational basis F.C.C. Beach judicial form of scruti- 124 L.Ed.2d 211 relaxed and tolerant (1993). Protection I find that several of BLAG’s ra- ny Equal under the Clause.” 19, 26, satisfy tionale suffice to constitutional Stanglin, v. City Dallas of (1989). scrutiny. 104 L.Ed.2d 18 However, under rational basis re even Survives Rational Basis Re- V. DOMA view, fail if it seeks to further an a law will view example, “the ac illegitimate end. For Report gov- The House identifies four animosity ... bias or can commodation of by advanced DOMA: ernmental interests legitimate government as a never serve “(1) the defending nurturing and institu- interest; attitudes, fear, negative mere traditional, marriage; heterosexual tion of by prop factors which are unsubstantiated (2) defending traditional notions of morali- circumstances, in the are erly cognizable (3) sovereignty ty; protecting state and bases for differential treat permissible not (4) pre- self-governance; democratic Able, 155 F.3d by government.” ment the serving government scarce resources.” (internal omitted). quotations Laws at 634 (H. 12.) Rep. at single out a certain class of citizens sup- that DOMA is legal status “raise the inev BLAG contends for disfavored rationales, by im all of which inde- disadvantage ported that the six itable inference ra- pendently justify legislation the under animosity of toward the class posed is born Romer, DOMA, argued, it is 517 U.S. at tional basis review. persons of affected.” (1) in: 633-34, 116 governmental advances interest 1620. And such animosi of maintaining a uniform federal definition legitimate govern cannot ty constitute (2) public fisc and marriage, preserving v. More- objective. Dep’t. Agric. mental of (3) in Supp. Human Servs. Mem. of P. & A. legislative judgments, respecting prior (4) Dismiss, caution, Commonwealth recognizing oppo- of Defs.’ Mot. exercising Dep’t. Health and unique ability pro- Mass. U.S. couples’ site-sex Servs., (JLT), (5) 09-cv-11156 at create, raising of chil- Human No. incentivizing (D.Mass. 2009) (docket en 28-31 Oct. by biological parents, their dren 17); try Dep’t. Treasury no. encouraging childrearing setting in a with U.S. Dismiss, Dragovich Dep’t. a father. Mot. to both a mother and (CW), Treasury, No. 10-cv-1564 at 18-24 Department argument, At oral 2010) (docket (N.D.Cal. July entry no. couple in “a confirmed that Justice 25); Mgmt. Supple U.S. Office of Pers. letters,” it indicated to Con- of different Resp. mental Br. Ct.’s Order Oct. gress uphold that it believed “courts would 15, 2010, Mgmt., Golinski v. Pers. Ofice (Oral Arg. three of DOMA.” Tr. section (N.D.Cal. 10-257(JSW), No. at 10-15 Nov. 42:8-14.) Specifically, a letter dated 83). 2010) (docket entry no. As late as 14, 1996, May Department of Justice January Department of Jus Hyde, Henry indicated to the Honorable J. tice told the First Circuit that DOMA was of the House Committee on the Chairman not unconstitutional. See Corrected Br. Judiciary, Department of Jus- “[t]he Dep’t. for the U.S. of Health and Human H.R. tice believes that would [DOMA] Servs., Mass. v. Commonwealth (H. Rep. be sustained as constitutional.” Servs., Dep’t. Human Health and Nos. 32.) May Department On (1st 10-2204, 10-2214, 10-2207, at 26-55 again Congress, in a of Justice advised 2011). Cir. Jan. No relevant facts or Canady, letter to Honorable T. Charles changed early law have since 2011 when Chairman of the House Subcommittee Department of Justice last took this (Committee the Constitution on the Judi- Indeed, position. argument, at oral ciary), that DOMA “would be sustained as Department acknowledged of Justice court, if challenged constitutional is, position part, its current on DOMA in that it legal does raise issues by result of “a decision that has been made necessitate further comment the De- Attorney General the Presi (Id. 32-33.) partment.” (Oral dent, judgment.” constitutional [a] Department of Justice maintained 42:21-43:6.) Arg. Tr. early until position defending against Department DOMA numerous lawsuits Even now the of Justice Indeed, intervening years. acknowledges from 2009 that “a argument reasonable through early Department constitutionality may for Section 3’s be position uniformity proffered Justice took the under” the rational basis stan- dard, preserve quo and desire to the status vis- and that there exists “substantial marriage pro- authority applying á-vis a federal definition of circuit court rational vided a rationale for DOMA sufficient to to basis review sexual-orientation classifi- JA-53.) (JA-56, sustain the law under rational re- At argument, basis cations.” view, argued applica- Department which was to be the its Justice summarized scrutiny. arguments ble standard of Office of most recent for DOMA’s ra- See Mgmt. “maintaining Pers. tional Supp. Mem. Law basis as the status Dismiss, quo” achieving degree uniformity Defs.’ Mot. to v. “a Gill Office of (JLT), benefits, Mgmt., coupled preserv- Pers. No. for federal with 09-cv-10309 (D.Mass. 2009) (docket Sept. ing policy 16-19 en- room for development.” state 44:3-7.) (Oral 21); try Dep’t. Arg. no. of Health and Tr. U.S. Hallahan, else.”); above, if is no Jones v. S.W.2d only there explained

As (“We (Ky.Ct.App.1973) inter- do not legitimate governmental conceivable est, rationally [marriage] related to DOMA is not consider the refusal to issue or interest, un- the statute be will persons such of the same [to sex] license rational basis review. under constitutional Marriage In & punishment.”); re J.B. H.B., (Tex.Ct.App. S.W.3d and Chil- Responsible Procreation A. 2010) limiting (rejecting argument drearing by Biological Parents marriage opposite-sex and divorce to cou only by ani ples “explicable class-based DOMA, Congress sought enacting mus”). Texas, See also Lawrence v. recognize, purposes, for federal explicitly 558, 585, 123 156 L.Ed.2d marital U.S. component of the biological (2003) (“Unlike disapproval moral legal responsibility and the relationship Nu- offspring of such a union. rearing the of same-sex relations —the asserted state high accepted courts have merous state interest in this case—other reasons exist excluding same- this as a rational basis promote marriage the institution be legally recognized same- couples, even sex yond disapproval mere moral of an exclud institution of civil parents, from the sex (O’Connor, J., group.”) concurring). ed govern- DOMA advances the marriage. in recognizing The interest the connec- connecting marriage mental interest marriage childrearing tions between certain biological procreation by excluding parents can be broken biological down simply by procreate who cannot couples First, components. into several DOMA being sexual from joinder of their different expresses Congressional recognition marital status. the federal benefits of begetting rearing of new “responsible review, rational courts must Under basis generations importance is of fundamental for re and credit all rationales consider (Amicus society.” Br. to civil of States of oppo stricting federal benefits 25.) Indiana, et al. at Because the state not evince uncon couples site-sex that do children, has an interest the state is courts animus. Numerous have stitutional preventing thus also interested in “irre- couples recognized denying phenomenon im- sponsible procreation,” right marriage rights federal even exclusively plicated by heterosexuals. in reasons marry grounded at all can be (BLAG 49.) legiti- Br. at Because of these than animus. See Massachusetts other interests, reserving mate Servs., Human Dep’t. Health and rights opposite-sex couples “protects] (“Massachu (1st Cir.2012) F.3d society,” Amicus Br. of States of civil ”) (“we rely upon do not setts HHS Indiana, al. at without the et because charge that hidden but dominant DOMA’s cou- marriage, opposite-sex inducement of homosexuality”); hostility to purpose was accidentally procreate, giving ples would (Bankr. Kandu, 123, B.R. 147-48 In re 315 unhealthy rise to unstable and families. W.D.Wash.2004) that can (noting DOMA important Marriage plays thus role by legitimate governmental explained be “channeling opposite-sex] sexual desires” Court, interests); Superior v. Standhardt which, marriage, in the absence of would (Ariz.Ct. 451, 276, Ariz. P.3d 465 206 77 relationships, in unstable which have (“Arizona’s result of same- App.2003) prohibition chil- documented to be harmful to been legislative marriages proper furthers sex (Amicus Indiana, Br. of States of et dren. simply to make end and was not enacted 26.) everyone al. at couples unequal same-sex

200 BLAG, “[mjarriage at- or It could temporary.

As casual find that stated tempts permanence and stabil- promote important marriage an function of is to vitally the wel- ity, important which are stability permanence more and create marriage.” children of the fare of the cause relationships children to 48-49.) (BLAG is, marriage That Br. at It choose be born. thus could to offer instability works to combat risk of form marriage an inducement —in the inherently which is characteristic of pro- its opposite- and attendant benefits—to but ab- opposite-sex relationships, creative solemn, couples long- sex who make relationships. sent from same-sex See commitment each other. term The Indiana, Br. States of et al. at Amicus could that this Legislature find rationale (“civil marriage 24 recognition arises from marriage apply with compa- for does not encourage biological parents need couples. force to rable same-sex These to remain for together the sake their can couples parents adoption, become children”).5 DOMA this inter- advances by artificial or insemination or other est, only provide state that the needs to marvels, technological they but do not in the opposite-sex couples incentives to parents result of become as a accident marriage, opposite- form only because impulse. or The Legislature could find unintended, unplanned, couples sex have relationships peo- that unstable between couples, by unwanted children. Same-sex ple opposite present greater sex contrast, reproduce only “deliberately danger that be children will born into or choosing by devoting to do so and seri- grow up in unstable homes than is the attention, time, ous and re- investment couples, with case same-sex and thus (Amicus Br. sources.” of States of stability in promoting opposite-sex 35.) Indiana, et al. relationships help will children more. accepted Numerous courts have ra- Robles, excluding 338, tionale as a basis for v. Hernandez 7 N.Y.3d 821 couples (2006) marriage. 770, 1, from civil The New 7 (plu N.Y.S.2d 855 N.E.2d instance, Appeals, York Court of deter- Andersen, rality opinion). See also 138 mined that (Johnson, J., at 1002 concurring); P.3d Sadler, Legislature could ... N.E.2d [het- find Morrison 821 24-25 relationships too (Ind.Ct.App.2005).

erosexual] are all often King Cnty., 5. See also Andersen v. tional basis. Such over- or under-inclusive (2006) Wash.2d 138 P.3d 982-83 finding does ness not defeat a rational ba ("[A]s Skinner, Loving, [v. Re- Harris, Zablocki sis."); N.J.Super. Lewis v. dhail, L.Ed.2d (Parril (N.J.App.Div.2005) A.2d indicate, marriage traditionally ] J.A.D., lo, (“[A] concurring) core feature of procreation linked to survival hu- marriage binary, opposite-sex is its na couples only man race. Heterosexual are the binary marriage [T]he ture .... idea of arose couples produce biological offspring who can sexes."); precisely because are two there couple. opposite- And the link between Health, Goodridge Dep’t Pub. Mass. procreation sex is not defeated (2003) (Sos 798 N.E.2d 979 n. by the opposite-sex fact that law allows J., man, (”[T]he dissenting) justifying reasons marriage regardless couple's willingness of a inextricably the civil laws are linked ability procreate. The facts that all to the fact that human intercourse sexual be opposite-sex couples do not have children frequently a man and a tween woman results single-sex couples raise children and pregnancy and ... in childbirth that fact lies party have children with third assistance or why society at the core of fashioned the insti through adoption limiting do not mean that marriage place.”). tution in the first marriage opposite-sex couples to lacks ra- rights opposite-sex to marriage federal recogniz- in the interest furthers DOMA pro- couples. and the link between ing by the Ma- noted for the reasons creation might well have enacted Congress of Appeals:

ryland history consulting after “the entire DOMA most an environment [Safeguarding regarding “problems” of civilization” and propagation the stable conducive no institution to that arise when there is is a le- the human race continuance biological to remain to- encourage parents interest. government gitimate (Amicus Indiana, Br. of States gether. there exists remains whether question 35.) This, too, accepted has been et al. at an link interest between sufficient excluding for same-sex as a rational reason pro- for environment fostering stable same- (including legally recognized couples means at hand used creation and the See, marriages. parents) from civil sex i.e., implicit an restric- goal, further that Hernandez, N.Y.S.2d e.g., wish to avail them- on those who tion (“Plaintiffs (plurality opinion) N.E.2d marriage. selves State-sanctioned have demon- they to assume that seem exist a there does conclude We irrationality of the view strated link____ This “inextricable sufficient advantages offer opposite-sex marriages procreation and link” between by showing there is no scientific children the definition reasonably support could assuming it. no support evidence to Even a man and a marriage as between exists, reasoning this such evidence relation- only, it is that woman because scien- In the absence conclusive flawed. biologi- producing ship capable that is evidence, ration- Legislature tific could (advances of both members offspring cal premise the commonsense ally proceed on notwith- technologies reproductive that children will do best with mother standing). home.”).6 agree in the I with and father Deane, 401 Md. 932 A.2d Conaway v. offered Wind- BLAG that the evidence (2007) (internal citations omit- 630-31 organizations and professional sor and the ted). amici who advocate for affir- child welfare procreation component of Another Congress’s not make “common mance does restricting childrearing rationale for and children a regarding the needs of sense” marriage is rights opposite-sex interest under ra- governmental forbidden to have children Congressional desire 55.) (BLAG Br. at tional basis review. only biological in families with raised hereafter in the context of As noted fathers, cou- and which same-sex mothers uniformity, in which DOMA Thus, the manner con- provide. cannot BLAG ples inter- legitimate governmental furthers the special encour- “offer[s] tends that DOMA childrearing, responsible procrea- that result ests relationships agement tion, biological parentage respects jointly raising their mothers and fathers may still children,” of federalism. States principles an interest which biological regard- arrive at individual determinations cou- “simply apply does not 54.) (BLAG may marry, ing may accom- who Br. at DOMA ples.” func- nothing change this by limiting DOMA does encouragement plishes Workers, Association, Psychologi- New State cial York Psychological Amici American Pediatrics, argue that no such credible Academy cal Association American American Association, Psychoana- Amicus Br. of Ameri- evidence exists. See Psychiatric American Association, Association, Psychological et al. at 15-23. can of So- lytic National Association other,” Br. at Historians Amicus DOMA from one system.7 tioning of our federal promulgation that the of a federal are and couples who certain simply excludes “injects the federal marriage eligibility from definition under state law married benefits, into domestic relations law privileges, government rights, certain federal the lawful delegitimize and works to both obligations. and cou- marriages of thousands of same-sex of married same-sex DOMA’s exclusion ... judgments considered ples and the rational review basis couples, under marriages, sanction same-sex [s]tates match, ends need not see means and where powers.” intruding] ... on core state Heller, at (States York, Vermont, and of New Con- interest sufficiently related to the federal 14.) Br. at necticut Amicus marital the link between the recognizing relations, in subject of off- The domestic rearing of its relationship and marriage, province has cluding been spring. Elk Sch. the states. See Grove Unified Quo Maintaining the B. Status Newdow, S.Ct. Dist. Uniformity (“Long ago L.Ed.2d we subject whole ‘[t]he observed rationally BLAG contends that DOMA is wife, and domestic relations husband governmental “in- legitimate related to the child, belongs the laws of the parent and eligibility in uniform for federal terest and not to the laws of the United States (BLAG 39.) Br. at marital benefits.” Burrus, ”) (quoting In re States.’ “long history Congress, argued, it is (1890)). 586, 593, 10 850, L.Ed. 500 marriage enacting federal definitions of this, does change But DOMA does not incorporate state defini- simply that do not con nothing strip the status states inevitably tions and will conflict with some Instead, marry. couples they fer on 42-43.) (Id. them.” A uniform fed- benefits, rights, DOMA limits the federal marriage eral definition of “ensures marriage privileges, responsibilities similarly-situated couples will have the to a of those deemed married under subset regardless same benefits of which state state law. (Id. 39^40.) they happen to live in.” expressed skepticism

The District Court government That the federal often de- end, regarding legitimacy of this but regarding fers state determinations rejected justification be- principally it to do so. obligate does not cause the states’ upon may perfectly “intrude[s] DOMA a state be disinterest- While regulating couple business of domestic relations.” into the prying ed reasons (JA-1007-09.) marries, government and various amici the federal remains Windsor argue government deeply properly federal concerned with the [has “[t]he reason(s) why couple See Massa- always] accepted states’ determinations weds. (“Con- HHS, validly who married —no matter how chusetts v. 682 F.3d at surely validity diverged gress far states’ criteria for has an interest who counts holding majority's applied pursuant that DOMA's defini- as to the states to the Four- is, therefore, yard- tion of as between a man and a teenth Amendment will be stick which to hold unconstitutional woman is unconstitutional doubtless Indeed, forty-one forty-one an affir- used to invalidate the laws in those law in the states. given majority’s to be the fact that mance Court of the states. Such has so likely forty- equal protection analysis by majority would the laws of the view doom couples purposes pursuant one states which exclude same-sex in this case for marriage. the Fifth Amendment is the same as that to be from civil any marriage they like but refuses to programs married. The statutes legal residency immigrants it be- regimes grant are federal governs that section 3 only married to secure the benefits lieves security, the Internal Reve- as social such marriage. feder- medical insurance for nue Code and workers; structure and their benefit al by general, DOMA alters the but no married to deciding who is

requires unyielding, of the practice means federal whom.”). accepting marriages recog- government However, by law. time marry for nized state example, people when For acted, Congress recognized only all states immigration purposes, govern- the federal opposite-sex marriages, and the fact that marriage may validly ment deem “fraudulent,” Congress quo chose to maintain that status though it remains valid even 1325(c) new, evolving in response § to this social under state law. See 8 U.S.C. legislative not its in- issue does invalidate enters into (“Any knowingly individual who that, DOMA, may prior terest. It be evading any marriage purpose for the marriage “definition” of was federal immigration laws shall be provision advancing targeted goal limited to of a years, than 5 or imprisoned for more blanket, program, not a particular $250,000, both.”); than or fined not more policy imposed undifferentiated choice 1255(e). 1154(a)(2)(A), §§ Courts U.S.C. by statuses created states. See Massa- See, e.g., recognized principle. have HHS, at 12. chusetts v. 682 F.3d But this (1st 19, 21 Taing Napolitano, 567 F.3d fact does not render the asserted interest Cir.2009) a “spouse” remained (plaintiff uniformity illegitimate lacking or so relative” under the Immi- and “immediate “footing subject in the realities of the ad- Act, even if her gration and Naturalization legislation” dressed as to fail ration- marriage actually ceased under state law Heller, al basis review. 509 U.S. at spouse); of her Adams v. upon the death S.Ct. (9th Howerton, 1036, 1040-41 673 F.2d

Cir.1982) (even same-sex valid Section 3 DOMA was enacted as law does not count as a mar- under state regarding marriage equality debate was immigration law riage pur- for federal time, just beginning the states. At that States, 344 U.S. poses); Lutwak v. United actually permitted no state had same-sex 604, 610-11, 97 L.Ed. 593 marry. couples intervening (1953) (noting marriage’s adherence to years, and the District of Colum- six states local law is immaterial if the court bia have enacted statutes issued conspiracy to defraud Unit- “part permit marriage.8 [a] decisions that States”). Tellingly, hand, does not thirty ed Windsor states have On the other argue Immigration that federal and Cus- con- founding amended their documents with tradi- prohibit toms Enforcement interferes stitutional amendment to same- marriage, sex and eleven more have tional state functions when leaves states states effect.9 recognize, purposes, for their own enacted statutes the same Giv- free 36.03; I, (McKinney § § Law 9. See Ala. Const. Art. Ala.Code 8. See N.Y. Dom. Rel. 10-a 30-1-19; 1, 25; § 2011); (2010); § Art. Alaska Const. Alaska § N.H.Rev.Stat. 457:l-a D.C. 1; 25.05.013; § § Stat. Ariz. Const. Art. 30 (2010); § Stat. 46-401 Vt. Stat. Ann. tit. 15 25-112; §§ Ariz.Rev.Stat. 25-101 & Ark. Brien, (2009); § 8 Varnum v. 763 N.W.2d 862 1; §§ § Ann. 9- Const. Amend. Ark.Code (Iowa 2009); Kerrigan v. Comm’r. Pub. 9-11-208; 11-109, 9-11-107, Cal. Const. Art. Health, (2008); 289 Conn. 957 A.2d 407 31; I, 7.5; 2, § § Art. Colo.Rev. Colo. Const. (Mass.2003). Goodridge, 798 N.E.2d 941 14-2-104; 101; § § Stat. 13 Del.Code Ann. issue, Constitution has vitali- each State’s nature of this Con- evolving en the traditions, to its own ty specific to maintain status was entitled gress to address difficult ... each State is free developments. Oth- further quo pending ... liberty in its own” issues of individual erwise, “spouse” for the “marriage” and Goodridge, at 967. manner. 798 N.E.2d depend would of federal law purposes state, in each of this debate the outcome argues upends, that DOMA Windsor under meanings of those terms with quo of preserves, rather than the status in a changing any change with federal law meaning control over the Congressional notes, rightly As Windsor given state. purposes. But this marriage for federal DOMA, to a state’s authorization prior legal the clear argument contrary implica- marriage had numerous same-sex of DOMA’s enact- landscape at the time federal laws to the extent those tions for time, is, at the all states were ment —that state- incorporate construed to laws were recognizing only opposite- in full accord in marriage. In order to law definitions actions allow it marriages. Congress’s sex of state-law de- implications avoid federal approach to maintain a “wait-and-see” marriage, area of Con- velopments evolving approaches the face of state DOMA, by enacting reasonably gress, marriages, thereby avoiding same-sex as it existed in policy froze federal benefits immediately poten- deal with the need marriage. respect with to same-sex tially significant impact on federal law legitimately recognition can a state’s of same-sex government The federal Indeed, im- far-reaching could impact poli- limit the national of state-level have. the federal definition of cy development. Doing pact so facilitates the benefits, rights, responsibilities, laboratories terms of ability of the states to serve as privileges (upon places which policy development. As the Massachu- Windsor Congressional great emphasis) stated when it held means that setts quite reasonably constitution action can be understood that the Massachusetts state impact required allowing couples perceived potential same-sex to to have system govern- that it in the federal marry, genius of our Federal decided “[t]he 2, 35; 27; 741.212; 3101.01(C); § § § § Art. Fla. Const. Art. 1 Fla. Stat. Okla. Const. Okla. 1, 4, I; 43, 3.1; XV, § § Ann. Ga. Const. Art. Ga.Code 19- § Stat. Ann. tit. Or. Const. Art. 3-3.1; 23; § Haw. Const. Art. Haw.Rev. 5a; 1102, 1704; §§ § Pa. S.C. Cons.Stat. 572-1; 111, 28; § § Stat. Idaho Const. Art. XVII, 15; § § Const. Art. S.C.Code Ann. 20- 32-209; §§ Idaho Code Ann. 32-201 & 9; 1-15; § S.D. Const. Art. S.D. Codified 5/212; § Comp. Ill. Stat. Ind.Code 31-11-1- 25-1-1; XI, 18; § § Art. Laws Tenn. Const. 1; 15, 16; § Kan. Const. Art. Kan. Stat. Ann. 36-3-113; § Tex. Const. Art. Tenn.Code Ann. 23-115; 233A; Ky. Ky. §§ § 23-101 & Const 32; 2.001(b) §§ § & Tex. Fam.Code Ann. 402.020; §§ Rev.Stat. Ann. 402.005 & La. 29; 6.204; I, § Utah Const. Art. Utah Code 15; § Art. La. Civ.Code Ann. Art. Const. 30-1-4.1; 30-1-2(5) §§ Ann. & Va. Const. 89; 19-A, 701; § Me.Rev.Stat. Ann. tit. 15-A; §§ § Ann. & Art. Va.Code 20-45.2 Ann., Law, 2-201; § Md.Code Fam. Mich. 20-45.3; 26.04.010(1); § Wash. Rev.Code W. 25; Comp. § Const. Art. Mich. Laws XIII, 48-2-603; § Va.Code Wis. Const. Art. 551.1; 517.03; § § Minn.Stat. Miss. Const. 13; 765.001(2) 765.04; § §§ & Wis. Stat. 263A; 93-1-1; § § Art. Miss.Code Ann. Wyo. statutory § Stat. Ann. 20-1-101. The I, 33; § Art. Mo.Rev.Stat. Mo. Const. prohibitions of nineteen or amendments 451.022; XIII, 7;§ § Mont. Const. Art. Mont. forty-one only these forbid not states 40-1-401; I, § Const. Art. Code Ann. Neb. marriage, relationship but other form of 29; 1, 21; § § N.C. Nev. Const. Art. Gen.Stat. partnership recognition, domestic 51-1.2; XI, 28; such as § § N.D. N.D. Const. Art. union, 14-03-08; persons of the civil between two same §§ Cent.Code 14-03-01 & Ohio 11; § Ann. sex. Const. Art. Ohio Rev.Code supposed can be consistency legislation maintain more [N]o interest merit’s necessary in wholesome and the found- uniformity distributing federal ben- free, ing self-governing of a common- programs. administering federal efits and wealth, fit to take rank as one of the co- agree Congress may, parties and both Union, ordinate states of the than that does, definitions from it often borrow which seeks establish on the basis law, sug- incorrect but Windsor is state family, consisting of the idea of in and or is required that it is to do so gest springing from union for life of one the directly, it does not. Put irrational when holy man woman in the and one estate of may legitimately also take an Congress matrimony; the sure foundation of all uniformi- approach attempts that to create that is stable and noble our civiliza- DOMA, Congress the states. ty across tion; guaranty the best of that reverent a uniform federal definition adopt chose to morality which is the source of all benef- “marriage” “spouse” purposes and progress political icent social and im- Congress rationally laws. could provement. maintaining quo that the status conclude 45, Murphy Ramsey, v. 15, 114 U.S. 5 during period a of flux the federal level (1885). 747, 47 S.Ct. 29 L.Ed. that wish to make would allow states explained Other courts have changes legal marriage in the definition of uniformity always explicit has not been or prerogative to retain their inherent to do necessary forty years to state. Almost so, permitting others to maintain the while ago Washington put state court it thus: traditional view. “[A]lthough appears appellate it prin- Rational basis review embodies the until courts of this state now have not been that, Congress enacting as did in ciple required specifically to define what consti DOMA, legislatures are free to refine their marriage, apparent tutes a it is from a “preferred approach as circumstances dealing legal ques review of cases with they a more nu- change develop and as tions out of marital arising relationship pro- to understanding anced of how best legal the definition of as the ceed.” Massachusetts v. Envtl. Prot. union man of one and one woman who are 1438, Agency, 549 U.S. 127 S.Ct. qualified otherwise to enter into the rela (2007). Contrary 167 L.Ed.2d 248 only tionship clearly implied from contention, preservation Windsor’s cases, by such but was deemed also quo the status definition of —the court each case to be so obvious as not among fifty uniform all that was states Hara, Singer require recitation.” year passage of DOMA’s —constitutes Wash.App. 522 P.2d 1191-92 legitimate governmental interest insofar Hallaban, (1974). See also Jones v. Congress ability as it allows to “wait (“In (Ky.Ct.App.1973) S.W.2d sub and see” how the issue of same-sex mar- stance, relationship proposed the [marital] riage shape among many would take appellants does not au [same-sex] and diverse states of our nation. a marriage thorize the issuance of license they propose because what is not a mar uniformity recognized that DOMA riage.”). recognized and maintained has been both Murphy many explicitly implicitly predating courts for Cases demonstrate jurisdictions consistently laud- years Supreme from various across the Court critical Perhaps explicitly, conception marriage nation. the Su- ed this as a most Reynolds social institution. See v. United preme stated: Court Griswold, See, 165-66, States, e.g., 244 who enter into it. 25 L.Ed. (1878) very from its na- (“Marriage, (noting while it is hard U.S nevertheless, in obligation, ture sacred private to conceive of what “is more nations, contract, and a civil most civilized more intimate than husband wife’s society regulated by Upon law. usually rights marital and “the to mari relations” built, and out of its may be said to be marry family and raise a privacy tal social ob- spring fruits social relations and magnitude order and as the are of similar duties.”). ligations and rights specifically protected” fundamental Constitution) J., concur Subsequent Murphy, (Goldberg, in the biological Nebraska, to view the has continued ring); Meyer parents deserving link of children L.Ed. 1042 protection. See special recognition (determining right “marry, establish a D., Michael H. v. Gerald bring up liberty children” is a home and (1989) 1, 2333, 105 L.Ed.2d 91 n. 109 S.Ct. Amendment).10 right under the Fourteenth alia, where, (indicating that inter a “hus Supreme has taken care Court also “cohabiting,” there is a band and wife” are preserve distinguish rights and the they that are in a “harmoni presumption is, biological family the natural —that — apparently exclusive marital rela ous and biological. over “families” other than the Connecticut, v. 381 tionship”); Griswold Robertson, 248, See Lehr v. 463 U.S. 256- 479, 482, 1678, 14 85 S.Ct. L.Ed.2d U.S. (1983) 57, 2985, 103 S.Ct. 77 L.Ed.2d 614 (1965) “intimate (noting special (“The played institution has wife”); relation of husband and see also defining legal critical role both in enti- Texas, 558, 567, Lawrence v. 539 U.S. family tlements of members and devel- (2003) (“[I]t 2472, 156 L.Ed.2d 508 S.Ct. oping the structure of our decentralized couple it to would demean married were society. recognition democratic of that simply right be said is about the intercourse.”). universally role ... state laws almost ex- to have sexual And mar press appropriate preference an for the riage carry special legal has been noted (footnotes omitted).11 family.”) entitlements for those men and women formal It Mohammed, (noting dispute” 10. See also Caban v. 441 U.S. "absence of that "free- 380, 397, 1760, personal family L.Ed.2d 99 S.Ct. dom of choice in matters of (1979) ("Even liberty protected if it be assumed that each mar life is a fundamental interest Amendment,” parent ried after divorce has some substantive noting and the Fourteenth process right pa due to maintain his or her relationships "[e]ven when blood are ..., strained, relationship rental no means follows parents pre- retain a vital interest in parent right.”) that each unwed such venting the irretrievable destruction of their (internal (Stewart, J., omitted) Gordon, life”); citations dis family v. Trimble 430 U.S. Ullman, 497, 553, 769, senting); 762, 1459, (1977) Poe v. 367 U.S. 97 S.Ct. 52 L.Ed.2d 31 (1961) (recog 81 S.Ct. 6 L.Ed.2d 989 (describing "family "perhaps unit” as nizing intimacy that "the of husband and wife most fundamental social institution of our so- necessarily accepted an essential and fea ciety”); Org. Smith v. Foster Families 816, 823, 843-45, marriage, Reform, ture of the institution of an institu Equal. & allow, only (1977) tion which the State not must but (noting 53 L.Ed.2d 14 always every age which and in it has policy fostered support New York of laudable State's protected,” noting and “positive, also parents” provide that "natural may power say ... relationships” "State” "exert its who nurturing family and "normal J., (Harlan, may mariy”) dissenting). family permanent life in a home” that offers opportunity develop the "best for children to Kramer, noting Santosky and thrive" and the “usual under- 11. See also biological standing 'family' implies 102 S.Ct. 71 L.Ed.2d 599 rela- a man species, vival of the between protects that “the Constitution has noted woman, family precisely principal purpose because of which is sanctity of the family deeply root encourage rearing. the institution child responsible history and tradition.” in this Nation’s ed Bak- Murphy understanding, set forth this Cleveland, Ohio, E. City Moore it, er v. Nelson reaffirmed and no 52 L.Ed.2d 97 S.Ct. U.S. Murphy gives case since me reason (1977) (Powell, J., plurality opinion). that definition should not still to doubt repeatedly that has indicated The Court stand. are the “source for “history tradition” Having maintaining found the interest ... content Constitu ‘supplying th[e] uniformity (including the form of the ” biological family units concept’

tional quo) legitimate, the means em- 1996 status protections under are afforded additional goal ployed appear appro- to advance this 97 S.Ct. 1932 nation’s laws. Id. our above, priate. argues As noted BLAG Ullman, (citing Poe v. that similarly-situ- that DOMA “ensures (1961) (Harlan, 1752, L.Ed.2d 989 [i.e., couples ated married same-sex cou- Thus, ., always dissenting)). it is and J “ ples couples] and all unmarried will have (collective) ‘traditions and has been ” [i.e., the same federal benefits re- none] “per not the people,’ of our conscience they happen to gardless of which state live judges, notions” of private sonal in, confusing situation in and avoids including what rights, societal determine (or couples which same-sex would lose an institution and who marriage is as simply by federal marital status mov- gain) Griswold, in it. participate entitled policies states with different ing between Snyder v. (citing 85 S.Ct. U.S. recognition marriages.” of same-sex Mass., 97, 105, Commonwealth of added).) (BLAG (emphasis Br. at 39^10 (1934)) 78 L.Ed. 54 S.Ct. discrimination, however, to The relevant J., concurring). (Goldberg, justified by be BLAG is DOMA’s differen- relying on the of these decisions light couples tial of married based on treatment understanding marriage as of traditional persons constituting the sex of the the woman, I only one man and one between couples same-sex are couple. Married Black in the sentiment join Justice similarly-situated opposite-sex to married ways effective of dilut- of most “[o]ne char- couples respect with to the relevant constitutionally guaran- ing expanding or marital acteristic at issue: status. for the crucial right teed is to substitute guaran- of a constitutional word or words claims that the line DOMA Windsor words, another word or more or less tee draws fails rational basis review because restricted in flexible and more or less purported justifications for the dis- Griswold, 381 U.S. at meaning.” “make no “are im- crimination sense” and (Black, J., dissenting). S.Ct. 1678 light of how the possible to credit” similarly groups at issue are situated. today, according to the federal Marriage However, regulation pro- of federal always means what government, union, grams emphatically province of Con- holy essential to the sur- meant —a omitted); (internal (internal quo- property rights.”) tionships”) Stan- citations citations Massachusetts, Illinois, omitted); ley 92 S.Ct. tations Prince v. (1972) ("The rights to 88 L.Ed. 645 31 L.Ed.2d 551 (1944) ("It have is cardinal with us that the custo- and to raise one's children conceive essential, rights dy, care the child first civil and nurture of reside been deemed basic man, precious parents.”). rights far more ... than in the maintaining quo interest the status defined Having previously gress. way marriage pending DOMA evolu- programs the definition of scope of federal Congress’s not forever bind in the states. does should tion of issue so, Congres- make doing hands from nonsensical, especially when action sional recognition biological Because the unaltered of the clear and light viewed childrearing connection of the nation’s his-

judicial characterization uniformity (including in the pursuit understanding marriage. torical preserving quo) the status are form creates contends that DOMA Windsor under rational support sufficient to DOMA two complexity and establishes tiers review, I choose not to discuss the basis permit in states that couples married rationales. Beach other asserted marriage. question But the same-sex Commc’ns, 508 U.S. at 113 S.Ct. 2096. uniformity marriage at the state level is Nevertheless, I address whether sex- next concern. the tension not DOMA’s While should, ual classifications as a orientation policies in this between state and Circuit, matter in this impression of first real, they greater than area are are no subject heightened scrutiny an be among those that have existed equal protection analysis. which Windsor acknowl- states —tensions of, and have en- edges reflect essence Appropriate Level of Review for VI. under, system. dured our federal Sexual Orientation Discrimination conclude, therefore, that it I was ration Court has reserved Congress prefer al for uniform substan heightened scrutiny for a small number of eligibility tive criteria for federal marital race, subject principally al- couples over “uni classifications— benefits sex, ienage, nationality, illegitimacy. varying state criteria. form” deference Heightened scrutiny recogni- attaches in may an to goal exception Such a be Con tion that these traits have been used to gress’s general deference to the states in impose, closely and are therefore associat- (even the area of in the face of with, Therefore, inequality. gov- ed social variation) contentious state-level but this employs ernment conduct that these classi- way legislative in no makes the classifica suspect fications is and must have more uniformity ir employed pursuit tion legitimate merely than a or permissible in light rational of the tremendous defer justification. Congress ence we afford acts of under Heller, rational 509 basis review. See U.S. question appropriate The of the level of (“[C]ourts 321, 113 S.Ct. 2637 are com scrutiny for laws that discriminate in re- pelled under rational-basis review to ac spect of the definition of on the cept legislature’s generalizations even basis of sexual orientation is an issue of imperfect when there is an fit between impression first in this Circuit. Able See ends.”). means and States, (2d 628, v. 155 F.3d United 632 Cir.1998) When, here, consider, (declining military policy as an issue involves choices, Supreme judicial has cautioned context where deference is “at its Court question forum for their whether sexual or- appropriate apogee,” “the reso- democracy trigger would legislature.” lution is the ientation discrimination Roe, 464, 479, heightened scrutiny challengers v. Maher 432 U.S. 97 S.Ct. because (1977). 2376, argue “any L.Ed.2d DOMA ra- did not for more onerous stan- 53 484 tionally legitimate government serves the dard than the rational basis test” and

209 er, 1, us is 517 U.S. at 641 n. 116 S.Ct. 1620 question “the sole before therefore (Scalia, J., dissenting). rational basis the Act survives whether review”). majority’s opinion, Until the DOMA had group in the affect individuals “[W]here by Supreme never been held Court or distinguishing character ed a law have suspect Circuit Court to involve a the State has relevant to interests istics Indeed, quasi-suspect classification. the courts authority implement, light Supreme Court’s reluctance to reluctant, they should very have been as apply heightened scrutiny catego to new with system in our federal our be discrimination, ries of and in consideration separation powers, respect for the fact that declined to do so in choices closely legislative scrutinize Romer, eleven other circuits have also not whether, how, and to what extent those taken step. See Massachusetts v. pursued.” City be Cle interests should HHS, 9; 682 F.3d at Davis v. Prison Ctr., Inc., Living v. 473 burne Cleburne (6th Servs., 433, Health 679 F.3d 438 Cir. 441-42, 3249, 432, 105 87 U.S. S.Ct. 2012); Brown, 1052, Perry v. 671 F.3d (1985). Supreme The L.Ed.2d 313 (9th Cir.2012); Gates, 1082 Cook v. 528 rejected by liti repeatedly arguments (1st 42, Cir.2008); F.3d 61-62 PriceC courts that gants rulings lower Brooks, 1103, ornelison v. 524 F.3d 1113 legisla grant heightened would review (10th Cir.2008); Equal Citizens Prot. v. handicap, on mental tive distinctions based (8th 859, Cir.2006); Bruning, 455 F.3d 867 3249, 442-47, kinship, Lyng id. at 105 S.Ct. Johnson, (5th 503, Johnson v. 385 F.3d 532 Castillo, 638, 635, v. 106 S.Ct. Cir.2004); Sec’y of Dep’t v. Chil Lofton (1986), age, 91 L.Ed.2d 527 Mass. Servs., Family dren & F.3d 818 307, 314, Murgia, Bd. Ret. v. (11th Cir.2004); Perry, Thomasson v. (1976), 49 L.Ed.2d 520 (4th Cir.1996); High F.3d 927-28 v. poverty, Indep. San Antonio Sch. Dist. Gays Tech Indus. Sec. Clearance Def. Rodriguez, (9th Cir.1990); Office, 895 F.2d 573-74 (1973). L.Ed.2d 16 Marsh, Ben-Shalom v. F.2d (7th Court, Cir.1989); having the despite Woodward United States, review, (Fed.Cir.1989); F.2d opportunity apply heightened Webster, provision invalidated the of the Colorado Padula v. 822 F.2d (D.C.Cir.1987); challenged Gay in Romer Nat’l Task Force v. Constitution under City City, 729 rational basis review. See 517 U.S. Bd. F.2d of Educ. of of Okla. (10th (1996). Cir.1984), That Romer was an 116 S.Ct. 1620 aff'd court, equally rational standard decided under the basis divided (1985) employ exacting (per to a more S.Ct. 84 L.Ed.2d 776 without need curiam). HHS, mean that v. level of review does not Massachusetts rejected question appropriate equal application tier of First Circuit scrutiny scrutiny, recog was not before the strict and intermediate protection Indeed, although plain- the Romer nized that DOMA satisfies rational Court. basis review, appeal” yet tiffs “elected not to the lower went on to create a novel scrutiny “plus” applicable court’s determination that sexual orienta- level of DOMA, Supreme in “suspect” tion does not constitute a contravention of classification, judicial in Supreme holding Court’s Baker. Such “quasi-suspect” deprive ‘rational of new levels of review “evidently agree[d] impositions Court ba- of further consider- governing people ... standard.” Rom- the American sis’ context). Indeed, military Department through their democrati- DOMA ation of acknowledged year last of Justice so cally representatives. elected —until position its constitutional fol- changed Courts numerous Circuit Significantly, the President’s announcement of lowing declining to extend decisions Appeals change policy. orientation scrutiny to sexual heightened Therefore, join I these eleven cir- v. would both Romer post-date discrimination cuits, only by not a reluctance to do driven v. Texas. Windsor Evans and Lawrence itself has that which the made re- that the determinations argues chance, given when but scrutiny in not undertaken level garding appropriate Gates, prec- for extant respect also out of routine v. 528 F.3d decisions such as Cook (1st Cir.2008) (rational-basis Subjecting the federal definition review edent. heightened scrutiny alter this would “Lawrence does not applies, and or, least, conclusion”) question the defy at call into Dep’t. Air and Witt Cir.2008) Baker, (9th Force, validity of which we are continued 527 F.3d (Circuit to do. Baker involved a empowered rational-basis precedent requiring Lawrence, marriage, prohibited law review “was not disturbed on the basis of equal protec- and thus discriminated which declined to address tion”) Holding orientation. that sexual because the sexual distinguishable are scrutiny heightened orientation merits military arose in a context where cases substantively would be inconsistent with judicial apogee.” is “at its See deference (1) Able, action faces legislative But as the volumi- Baker since 155 F.3d at 632. clear, likelihood of invalidation under authority high cited above makes see nous IV, heightened scrutiny, and it would be supra, whatever additional def- Section scrutiny apply heightened action curious to Congressional erence courts afford context, form of that does not raise a military in the rational basis re- discrimination is, context, of constitution- highly question substantial federal view even the civilian HHS, al legislature, to the not a mecha- law. See Massachusetts deferential (“[T]o suspect at 9 create such a new judges guess properly nism for to second F.3d relationships classification for same-sex legislative judgments, enacted and the far-reaching implications Beach would have “paradigm of restraint.” See —in Commc’ns, an particular, by implying overruling 2096. Baker, empowered n. which we are neither Perry, See also 671 F.3d context, rulings willing predict.”). Any do nor such (relying, the civilian scrutiny development from the elected apply heightened that declined to must come representatives people.12 of the American to sexual orientation classifications (“OPM'') Indeed, Management representative was direct- one elected Personnel —the steps mitigate clarify purposes employee already taken ed to that for President —has part- upon couples by programs, same-sex domestic the harms visited assistance "family qualify as a memoran- ners and their children DOMA. The President has issued addition, pursuant requiring departments members.” In Presi- dum all executive Regarding agencies existing Memorandum Federal steps, to take consistent with dential (June 17, law, to the same-sex domes- Benefits and Non-discrimination to extend benefits 2009), regulations expanding partners employees, tic federal and where OPM issued “qualified applicable, definition of relatives” to include to the children of same-sex domes- eligible partners partners employees. same-sex domestic tic of federal See Presi- Memorandum, long-term employees care insur- dential Extension of Benefits in the federal (June 1, program. CFR 875.213 Same-Sex Partners of Federal ance See 5 Domestic (June 20, 2010). Employees The Office of 2010). doing so in a the merits Whatever COOLLICK, Plaintiff-Appellee, Linda union, I than the marital other

context that, respect unique conclude impru- it would be institution rule under which to announce a new

dent Abigail HUGHES, Defendant- subject heightened orientation is sexual Appellant.

scrutiny. Docket No. 10-5248-cv. Appeals,

CONCLUSION United States Court of Second Circuit. reasons, I would hold foregoing For the Baker, legislative distinction per Argued: Jan. rational basis drawn DOMA satisfies 24, 2012. Decided: Oct. is therefore constitutional. review and marriage, connections between Whether offspring recog-

procreation, biological uniformity it im-

nized DOMA and the are to continue is not for the courts

poses decide, but rather an issue for the repre- people

American and their elected through the democratic

sentatives to settle should not intervene

process. Courts political there is a robust debate

where well, doing poisons political

because so anti-majoritarian

imposing a destructive ruling vigorous

constitutional on a debate. should not entertain claims like

Courts here, as we can intervene

those advanced only

in this robust debate to cut short. respectfully majority

I dissent from the

opinion to the extent it holds otherwise. committee); Cong. Congress, provide types died in S. 111th efforts various (2009) (no (2009); Cong. part-

federal benefits for same-sex domestic H.R. 111th insurance, being life action on either version after ners—such as health insur- taken S.1910, ance, committees); reported pensions, employment-related out of 112th and other introduced, (2011) committee); routinely Cong. (reported if unsuc- out of benefits—are (remains See, Cong. e.g., Cong. S. 110th H.R. 112th cessful. committee). (2007); (2007) (bills Cong. H.R. 110th

Case Details

Case Name: Windsor v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 18, 2012

Citation: 699 F.3d 169

Docket Number: Docket 12-2335-cv(L), 12-2435(Con)

Court Abbreviation: 2d Cir.