Like President Obama, I am a constitutional scholar. So I have reviewed the decision in the case Windsor v. United States in which the Second Circuit declared the Defense of Marriage Act (DOMA) to be unconstitutional. I respectfully disagree with the majority of the court. While I agree in general with the dissent written by Judge Straud, I present here my own analysis. And I hasten to say that my analysis hinges not on what I prefer to be the outcome of the the question in general, rather it is a review of how laws are to be reviewed by the courts.
Here are the facts of the case as stated by the Second Circuit:
Plaintiff Edith Windsor sued as surviving spouse of a same-sex couple that was married in Canada in 2007 and was resident in New York at the time of her spouse’s death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. § 2056(A) solely because Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and “spouse” in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married.
The court says, “Regulation of marriage is ‘an area that has long been regarded as a virtually exclusive province of the States.’” While this statement is true, it is irrelevant to this case. This is a case about federal estate taxation. The federal government, not the states, has exclusive province to define the rules of federal taxation. This is a longstanding fact that has never (to my knowledge) been challenged. For example, each state defines what it means to be a corporation, and the IRS decides how to tax corporations at the federal level. Each state also has a non-corporate entity called a limited liability company (LLC), which the IRS chooses to treat as a disregarded entity, that is the LLC is not separately taxed. So the states may define marriage or LLC for their internal purposes, but likewise the federal government may define marriage or LLC for its own taxing purposes.
Laws are reviewed for constitutionality based on one of two or three review principles. In rational basis review, the government is allowed to treat a person differently from the rest of society based on his membership in any class that is not a suspect or quasi-suspect classification of people if the government has a rational reason related to a legitimate government interest. The plaintiff has to prove that the government has no such reason. The court in this case admits that under rational basis review of DOMA the law is likely to prevail as constitutional.
So the court makes the argument that DOMA is subject to intermediate (or “heightened”) scrutiny. To do so, the court must find that classifying people as homosexual is a suspect or quasi-suspect classification. The court says that “Section 3 of DOMA is subject to intermediate scrutiny.”
You must understand that there is nothing in the United States Constitution that talks about suspect or quasi-suspect classifications of people. This terminology is merely jargon for saying that people who belong to certain classes deserve more rights than people who do not belong to those classes. If a classification of people is declared to be a suspect classification (an arbitrary designation), then the government must prove it has a compelling reason to treat persons of that class differently from society as a whole. If a classification is declared to be quasi-suspect (another arbitrary designation), then the government must prove it has an important reason to treat persons of that class differently from society has a whole
For example, “wealthy” is not a suspect or quasi-suspect classification. So the government may treat wealthy people differently and require them to pay higher taxes than people who are not members of the class called “wealthy,” as long as the government has a legitimate reason to do so. This is a low standard and easy to meet. The same can be said of left-handedness, renters (as opposed to home-owners), corporation executives, ethanol producers, and on and on. All of these classes have not been defined as suspect or quasi-suspect classes, so the government is allowed to tax them at higher or lower rates than people who are not members of those classes.
Race on the other hand is considered a suspect classification. So government may not tax black people more than white people without a compelling reason to do so. Rest assured, the courts sill never accept any reason as compelling when it comes to taxing Blacks more than non-Blacks. (The Supreme Court has gotten itself in a bind of inconsistency with this classification system saying that under some circumstances Whites can be treated worse than Blacks, but that is the subject of another whole set of cases.)
Well what about “married” as a class? It turns out the courts have decided that “marital status” is not a suspect or quasi-suspect classification,.
Back to this case. Being married is a lifestyle decision. The Supreme Court has never declared that a classification of people based on any lifestyle is a suspect classification. So renters may be treated different than homeowners; motorcycle drivers may be treated different than automobile drivers (e.g. the former may be required to wear helmets); and married people may be treated different than unmarried people, so government may tax married people more (as in the marriage penalty) or less (as in estate taxation) than the population as a whole. Nevertheless the Second Circuit in this case says the Supreme Court will likely treat homosexuals as a quasi-suspect class someday, therefore any laws affecting them differently than the rest of society deserve intermediate scrutiny. In order for the Second Circuit to declare homosexuals to be a quasi-suspect classification, the court relies on some factors: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority. Many of these factors could be applied to wealthy people, and it is probably not a stretch to say that all of these factors would apply to renters. In fact the court takes great liberties with logic in its analysis.
In this lengthy analysis the court makes yet another huge mistake by focusing on homosexuals as a class. Notice that the court plays fast and loose with its own definitions. DOMA does not treat all homosexuals differently, and in fact no reference is even made to homosexuals in DOMA. What DOMA does is clarify interpretation of the word “married” in federal laws, and that word means the union of one man and one woman. Homosexuals may marry a person of the opposite sex, and heterosexuals may marry a person of the same sex. DOMA does not condemn or make illegal any union. It merely defines a term that previous needed no definition because for thousands of years the word married had a particular meaning.
But even if one allows the court this errant digression of addressing the broad class of homosexuals rather than addressing the definition of marriage there remain problems. Because the court ignores the fact that the tax laws are not about discriminating against homosexuals, the tax laws are about encouraging traditional marriage.
The question in this case is not whether homosexuals are being discriminated against by DOMA, rather the question is whether the tax preferences that are doled out based on the non-suspect classification of marital status should be expanded to include more people. That is a political issue, not a rights issue. The Second Circuit complains that DOMA “defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity.” DOMA does no such thing! DOMA merely states that for the purpose of interpreting the United States tax code, whenever the word “married” is encountered, it is taken to mean “union between one man and one woman.”
Why does the government tax married people differently than unmarried people? The answer is not related to a need to create more revenue; there must be a societal reason. Politicians always use the tax code to promote and reward their own favorite special interest groups. Historically it has been politically advantageous to reward traditional families so tax breaks are given to married people, and more tax breaks are given to married people who have children.
If homosexuals deserve those tax preferences merely because they claim they are married, then why shouldn’t single people also get those preferences merely by claiming that marriage should be defined to include people who have sex with someone? The answer to that question can be answered only by the legislature, not the courts. When no one gets married anymore it will become politically disadvantageous to reward people for marrying and having children so the tax laws will change, just as when renters outnumber homeowners as a voting class the mortgage interest deduction will disappear.
Once society permits the government to encourage or discourage certain behavior through the tax code, society must permit the government to define those encouragements or discouragements precisely. It is rather strange that the Second Circuit admits that marital status is not a suspect classification, but the government is not permitted to define what the term marital status actually means.
Either the tax code with respect to marital status is unconstitutional, or DOMA as it applies to the tax code is constitutional. You cannot have one of them be constitutional and the other not. I don’t like a tax code that treats any class differently, not the wealthy, or renters, or married people. But given that taxation has been viewed for a long time as a valid means for the government to discourage or reward certain behavior, DOMA is no more unconstitutional than a great many more discriminatory practices found in the tax code.
I must mention one last point about this case. The Obama Administration, and in particular the Holder Justice Department have taken a radical departure from history by not only not defending DOMA, but joining the plaintiff to try to have the courts declare DOMA unconstitutional. The dissenting Judge Straub notes that “The Attorney General’s position is unprecedented in its departure from the Department of Justice’s long standing policy of defending federal statutes even if the President disagrees as a matter of policy.” This is yet another example of the behavior of a radical Executive Branch.