Constitution

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). Read more »

Last week, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes under federal law as between one man and one woman, violates the U.S. Constitution. And yesterday, the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown, which held that California's constitutional amendment banning same-sex marriage violates the federal Constitution's Equal Protection Clause. The First Circuit's decision last week paired with the Ninth Circuit's decision not to further review Perry raises the possibility that the Supreme Court may weigh in on questions of marriage equality under the Constitution sooner rather than later.

The First Circuit's decision is the first time a federal court of appeals has held that DOMA is unconstitutional. (The National Women's Law Center joined a friend-of-the-court brief arguing that DOMA violated the Equal Protection Clause.) The First Circuit's ruling was issued in two consolidated cases. In Gill v. Massachusetts, same-sex couples married under state law argued that Section 3 of DOMA violated the Equal Protection Clause by preventing same-sex spouses of federal employees from receiving the same spousal benefits as opposite-sex spouses; and in Massachusetts v. Department of Health and Human Services, the commonwealth of Massachusetts argued that this section of DOMA was invalid under the Tenth Amendment and the Spending Clause because federal funding for specific programs was premised on denying benefits to same-sex married couples. In 2010, a Massachusetts district court had ruled that Section 3 of DOMA was unconstitutional in both cases. Read more »

Forty years ago today, for the first time in its history, the Supreme Court held that a law that discriminated against women violated the Constitution. In Reed v. Reed, a unanimous Court struck down an Idaho law requiring the automatic preference of a man over a woman when both applied to be the executor of an estate. The Court recognized that women had a constitutional right to equal protection of the law, turning from a long list of previous rulings that allowed women to be excluded from juries, or the legal profession, or even bartending, on the grounds that women needed to be protected from the rough-and-tumble of the workplace or the public square, or confined to the sphere of hearth and home. The Court’s ruling was spurred by the advocacy of Ruth Bader Ginsburg, who authored Sally Reed’s Supreme Court brief and whose efforts in that case and in a series of groundbreaking Supreme Court cases in the years that followed established constitutional protection against discrimination on the basis of sex. Forty years ago today, the Supreme Court’s decision also gave new constitutional underpinnings to the statutory protections against sex discrimination in employment and an impetus and strength to an array of new statutory protections against discrimination in education, credit, and housing, as well as employment, in the years that followed. That work continues. Most recently, there is a new protection against sex discrimination in federally-funded health care, as part of the Affordable Care Act, closing yet one more gap in legal protection against discrimination women are still fighting to secure. Read more »

As expected, the House voted this afternoon on a balanced budget constitutional amendment, H.J. Res. 2. The good news: it failed, 261 to 165. (A constitutional amendment requires a two-thirds majority to pass.) If you’re wondering why it’s so great that the House rejected an amendment that would require a balanced budget, check out my recent blog post with the top five reasons why the BBA is such a terrible idea. In short, approval of a BBA in the House would have brought us one big step closer to longer and deeper recessions, with major cuts to programs that women and their families depend on. Read more »

About a year ago, Justice Scalia was asked whether the Fourteenth Amendment, which prohibits the government from denying the equal protection of the laws, applies to sex discrimination. (Hint: in decades of jurisprudence, the Supreme Court has said that it does.) His answer was shocking. He said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” Read more »