Doma After U.s. v. Windsor: Navigating an Era of Change—part I
| Publication year | 2014 |
| Pages | 65 |
| Citation | Vol. 43 No. 5 Pg. 65 |
Trust and Estate Law
DOMA After U.S. v. Windsor: Navigating an Era of Change—Part I
By Horace A. Lowe, Allen Rozansky, Camillie Yuasa
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P.C., Aurora—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw.com
About the Authors
Horace A. Lowe is engaged in the areas of general litigation, estate and trust administration and litigation, estate and disability planning, guardianships and conservatorships, and closely held business counseling with The Law Office of Horace A. Lowe-hlowe@halolaw.com, www.halolaw.com. Allen Rozansky practices estate planning, corporate law, probate and trust administration, and probate litigation with Hutchins & Associates LLC-arozansky@hutchinslaw.com. Camillie Yuasa is a student at the University of Colorado School of Law.
This article provides an overview of the U.S. Supreme Court's decision in U.S. v. Windsor and selected Windsor court decisions, as well as the current state of the marriage and civil union laws in Colorado. Also provided are summaries of complaints in two state court cases challenging Colorado's DOMA and civil union laws and a summary of a key federal case now before the Tenth Circuit Court of Appeals.
The evolution of same-sex relationships and the legal issues pertaining to those relationships, including the federal Defense of Marriage Act (DOMA)[1] and state "mini-DOMAs," began to evolve with prominence during the 1990s. Past articles published in The Colorado Lawyer provide a useful review of this history, as well as a preview of some of the issues addressed in this article.[2]
On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor,[3] invalidated section 3 of DOMA, which had amended the Dictionary Act to define "marriage" as a union between one man and one woman.[4] However, because it was not at issue, Windsor left intact DOMA section 2, which provides essentially that the several states are free to recognize or not recognize same-sex marriages celebrated in other states.
Colorado and other civil union states afford such rights and benefits as are granted under state law. However, under Windsor, only same-sex marriages authorized by the law of the state or foreign country of celebration are entitled to federal benefits on equal footing with traditional marriages. Thus, the immediate impact of Windsor was to create a two-tier system of rights for same-sex couples related to rights and benefits under more than 1,100 federal statutory schemes.
Immediately following the Windsor decision, President Obama directed the U.S. Attorney General to review all implicated federal statutes and regulations, and directed federal departments to ensure the swift and smooth implementation of the Windsor decision and its implications for federal benefits for legally married same-sex couples. Also, federal and state courts began announcing decisions in cases that were pending during the litigation of Windsor. As Justice Scalia and Chief Justice Roberts predicted in their dissents in Windsor, DOMA litigation has exploded. As of this writing, more than twenty lawsuits involving state DOMAs have been filed, including two lawsuits in Colorado..[5]
The post- Windsor decisions so far have come down on the side of proponents of same-sex marriage or unmarried same-sex couples. To the extent the cases are based on an equal protection analysis, each case has been determined on a rational basis analysis, rather than heightened scrutiny, and the justifications for DOMA laws urged by the states have been found insufficient.
In one case under review by the Tenth Circuit Court of Appeals, the trial court concluded that marriage is a fundamental right equally applicable to both opposite-sex and same-sex couples, determining that the state's DOMA also violated the plaintiffs' due process rights under the Fourteenth Amendment.
The attorneys general and/or governors of Nevada, Pennsylvania, Oregon, and Virginia have declined to defend their laws, having concluded that bans in their states are unconstitutional. Colorado Attorney General John Suthers and his Michigan and Texas counterparts will defend their states' DOMAs in pending litigation and appeals.
Part I of this two-part article examines the analyses and substantive rationales underlying Windsor. It discusses selected post- Windsor cases to reveal varying judicial views as to what Windsor means. The article also discusses the impact of Colorado's DOMA laws post-Windsor, and summarizes the complaints filed in Brinkman and McDaniel-Micco, two pending Colorado cases. Finally, Part I provides a brief overview of the Utah case, Kitchen v. Herbert, the appeal of which was heard by the Tenth Circuit in April 2014, along with the cross-appeals in Bishop v. Smith, arising out of Oklahoma. These decisions will likely inform the outcomes in Brinkman and McDaniel-Micco.
The present mixed bag of state DOMA laws will for some time present myriad challenges for lawyers whose practices necessarily involve consideration not only of applicable Colorado law, but also federal laws and the laws of other states. Part II of this article, which will be published in an upcoming issue, will discuss the current state of federal agency implementation of the Windsor decision (including IRS Revenue Ruling 2013-17), Colorado's DOMA provisions and its civil union statute, amendments to Colorado's civil union act in light of Revenue Ruling 2013-17, and the current matrix of other state DOMA laws. The implications for estate planning professionals will be emphasized.
Part II will offer insight into practical problems, including examples, that currently exist and will likely arise for estate planners. It will provide useful practice tips to help practitioners avoid problems and successfully navigate an uncertain course. Part II will also update the status of pending litigation and appeals in Colorado state courts, other state courts, and the Tenth Circuit.
The Windsor Opinion
Edith Windsor and Thea Spyer had married lawfully in Canada and resided in New York, which recognizes same-sex marriages. Spyer died in 2009, leaving her entire estate to Windsor. Windsor paid $363,053 in estate taxes and then sought a refund on the basis that she was Spyer's surviving spouse, which the IRS denied.
The Windsor majority's analysis first focused on the evolution of lawful same-sex marriages. Against the background of the historical and traditional role of the states to define and regulate marriage, the majority noted that the U.S. Congress retains authority to enact discrete laws that impact marital rights and privileges where there is a federal interest in administrative efficiencies or larger federal policies, such as nonrecognition of an otherwise valid marriage entered into for the sole purpose of admission into the United States.
The opinion distinguishes DOMA from these sorts of laws. DOMA's reach included more than 1,000 federal statutes, as well as many related regulations. Further, DOMA was directed to a class of persons protected by the laws of the states that have authorized same-sex marriage.
The majority opined that DOMA rejected the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each state. It further concluded that because of DOMA's reach and extent, it departed from the history and tradition of reliance on state law to define marriage and amounted to discrimination so unusual as to require careful consideration to determine whether it is "obnoxious to the constitutional provision."[6]
Notwithstanding the foregoing, the majority expressly declined to decide the case on the basis of principles of federalism or whether DOMA disrupted the traditional federal balance regarding defining marriage. Instead, the Court focused on the states’ conferral on same-sex marriages a dignity and status of significant importance, enhancing the recognition, dignity, and protection of the class in their own communities. In the view of the majority, DOMA imposed on same-sex married couples restrictions and disabilities opposite to the dignities conferred by the states. Thus, the opinion turns on the issue of whether the resulting injury and indignity constitute a deprivation of an essential part of the liberty protected by the Fifth Amendment.
Focusing on the broad array of rights and benefits given traditional married couples by federal statutes and regulations, the Court found that DOMA sought to injure the very class New York sought to protect and that, in doing so, it violated basic due process and equal protection principles applicable to the federal government. The majority reasoned that the Constitution's guarantee of equality must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.
The majority found that DOMA was motivated by an improper animus of purpose based on four key considerations. First, DOMA's deviation from the usual tradition of recognizing and accepting state definitions of marriage and its operative effect of depriving same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages is so unusual as to constitute strong evidence of a law having the purpose and effect of disapproval of that class.
Second, the history of DOMA's enactment (particularly House Reports reflecting a preference for traditional...
To continue reading
Request your trial