US Supreme Court finds exclusion of same-sex marriage unconstitutional

United States v Windsor, No. 12-307 (US Supreme Court, 26 June 2013)


The Supreme Court of the United States has found the Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” as excluding same-sex partners, unconstitutional. The Court held DOMA to be a deprivation of the equal liberty of persons, which is protected by the Fifth Amendment to the United States Constitution.


Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. In 2007 they travelled to Ontario, Canada, where they were lawfully married. New York has since legislated to recognise same sex marriages. After Spyer’s death in 2009, Windsor was barred by DOMA from claiming the estate tax exemption for surviving spouses.

Section 3 of DOMA amended the Dictionary Act in Title 1, §5 of the United States Code to provide a definition of “marriage” and “spouse” for the purposes of all federal statutes. “Marriage”, it stated, “means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Windsor paid the taxes and commenced action in the United States District Court for the Southern District of New York after she was denied a refund. She contended that DOMA violated the guarantee of equal protection, as applied through the “due process” clause of the Fifth Amendment (“nor shall any person … be deprived of life, liberty, or property, without due process of law”).

While the refund suit was pending the Attorney-General announced that, while §3 of DOMA would still be enforced, its constitutionality would no longer be defended by the executive. The Bipartisan Legal Advisory Group of the House of Representatives then voted to intervene to defend DOMA. This unusual aspect of the procedural history was a point of contention in the Supreme Court.

The District Court held that §3 of DOMA was unconstitutional and ordered the Treasury to refund the tax with interest. That decision was affirmed by the Court of Appeals for the Second Circuit. The Supreme Court granted certiorari after the government failed to provide Windsor with her refund and continued to enforce §3 of DOMA.


The Supreme Court had two questions to decide: first, whether the parties had standing, and second, whether DOMA was constitutional. The majority (Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan) held that the parties had standing and that DOMA was unconstitutional. Justice Scalia, joined by Justice Thomas and Chief Justice Roberts in part, dissented on both points; Justice Alito, joined in part by Justice Thomas, wrote a separate dissenting opinion.


The essence of the controversy regarding standing was stated by Justice Scalia:

the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

For the majority, the fact that the judgment below ordered the government to pay money that it would not otherwise disburse was key. There was still an injury to the Treasury if the payment was made (or to Windsor if it was not), no matter the executive’s views of DOMA’s constitutionality.

The majority was also satisfied that prudential concerns arising from the executive’s position – namely whether the case would be properly argued – had been overcome. The Bipartisan Legal Advisory Group, defending DOMA’s constitutionality, presented a sufficiently “sharp adversarial argument”.

Justice Alito agreed with the majority here, but on slightly different grounds.

Justice Scalia (Justice Thomas agreeing, Chief Justice Roberts agreeing on this point) disagreed vehemently with the majority as to standing. He described the majority’s decision to hear the case as “jaw-dropping” and criticised its “exalted conception of the role of this institution in America”.

Constitutionality of DOMA

In addressing DOMA’s constitutionality, the majority first established that the definition and regulation of marriage had long been treated as within the authority of the states. New York’s decision to legalise same sex marriage and give a certain class of persons the right to marry, conferring upon those persons a “dignity” and status, was therefore a proper exercise of its sovereign authority. However, the Court considered that DOMA sought to “injure the very class New York seeks to protect” – its principal purpose was to impose inequality, and its necessary effect was to “demean those persons who are in a lawful same-sex marriage”. Unable to identify a legitimate purpose which could overcome that purpose and effect, the majority held DOMA to be unconstitutional.

Justice Scalia described the majority’s judgment as “rootless and shifting” and criticised it for ascribing DOMA a purpose without comprehensively discussing the arguments put forward by the statute’s defenders. More fundamentally, though, his Honour thought the Court simply should not have heard the case. “It is one thing for a society to elect change”, he wrote; “it is another for a court of law to impose change”. Justice Alito (Justice Thomas agreeing on this point) and Chief Justice Roberts filed separate dissenting opinions, displaying similar misgivings about the appropriateness of the Court hearing the case and criticising the majority’s reasoning.


Needless to say, this case and its outcome were extremely controversial. It has been heralded as a milestone in US jurisprudence, and was welcomed by same-sex marriage campaigners worldwide.

Its potential impact in Australia, though, is difficult to gauge. The Australian Constitution contains no express guarantee of due process analogous to the Fifth Amendment, and while sub-section 8(3) of Victoria’s Charter of Human Rights promises “the equal protection of the law without discrimination”, that is evidently in different terms to the US due process guarantee. In Australia, then, it will perhaps be in the political realm, rather than jurisprudentially, that the case will prove most influential.

This decision is available online at:

David Foster, Law Graduate, King & Wood Mallesons Human Rights Law Group.