Amy K. Matsui, Senior Counsel and Director of Women and the Courts

This Supreme Court Term presented both a significant victory and significant setbacks for women’s rights. The victory, although qualified: the Court’s 5-4 decision upholding the constitutionality of the Affordable Care Act (ACA). Women’s rights advocates and people across the country continue to celebrate this landmark decision upholding a law that offers critical protections for women’s health and economic security. But while it ruled that the law is constitutional, the Court limited the penalties the federal government can impose if a state refuses to participate in the expansion of the Medicaid program set forth in the ACA, meaning that some states may not expand Medicaid. Further, Chief Justice Roberts’ opinion, particularly when read in conjunction with the stinging joint dissent signed by Justices Scalia, Kennedy, Thomas, and Alito, raises questions about the Court’s future Commerce Clause and Spending Clause jurisprudence and may invite further constitutional challenges to important social programs.

Following on the heels of Northern District of California Judge Jeffrey White's ruling in Golinski v. OPM in February and the First Circuit's decision in Gill last week, yesterday, a judge on the Southern District of New York ruled in Windsor v. OPM that Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as between one man and one woman, violates the Equal Protection Clause of the Constitution.

Like those other decisions (as well as Perry v. Brown in the Ninth Circuit, which considered California's state constitutional ban on same-sex marriage), the Windsor decision does not adopt heightened constitutional scrutiny, but nonetheless concludes that DOMA does not satisfy the more searching rationality review appropriate in cases that do not involve routine economic regulations. This is notable because Windsor is the first DOMA challenge in a jurisdiction where the governing circuit court had not previously decided whether or not heightened scrutiny applies to laws that discriminate against LGBT individuals (and indeed, Windsor is one of the cases whose filing prompted Attorney General Holder's February 2011 memo stating that the Department of Justice would no longer defend DOMA's constitutionality).