Supreme Court Watch



Nina Joan Kimball, Esq.

Kimball Brousseau LLP


United States v. Windsor, No. 12-307

The U.S. Supreme Court heard oral argument on March 27, 2013 in United States v. Windsor, the case challenging DOMA, the Defense of Marriage Act.  Though the case is not technically an employment case – the claim at issue involved payment of an estate tax – DOMA does affect a myriad of federal laws that affect employment.  By defining “marriage” as the union of one man and one woman for purposes of over 1,100 federal laws, DOMA affects many laws governing employment. 


During the oral argument, Justice Ginsberg noted that DOMA “touch[es] every aspect of life,” and described how it creates two classes of married couples, opposite-sex couples, who enjoy all the benefits of federal laws applying to married couples, and same-sex couples, who are deprived of those benefits.  As she said,


“I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he [the attorney supporting DOMA] was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.”


Here are a few of the federal laws that apply in the employment setting and which employers have to apply differently to their married employees depending on whether the employee’s spouse is of the same gender or the opposite gender, thus creating all kinds of administrative and compliance burdens:


  • The Family and Medical Leave Act: an employee cannot take protected FMLA leave to care for his or her same-sex spouse, and military caregiver leave would not apply to a same-sex spouse in the military.
  • Health insurance: insurance companies are not required to recognize a same-sex spouse for coverage where the employer and insurance company is based out of state.
  • Tax treatment of health insurance: if a same-sex spouse can only get health insurance coverage as a domestic partner, then the employer must treat the value of the benefits as taxable income on the W-2 form for purposes of taxes and social security income.
  • COBRA: continuing health care coverage under COBRA when an employee loses a job, does not apply to same-sex spouses.
  • Employee pension plans: the Employee Retirement Income Security Act (ERISA), which governs pensions and retirement plans, provides substantive rights to spouses, but does not recognize same-sex spouses. 


In this case, there is a question as to whether the Court will reach the merits.  The Court asked for separate briefing on the issue of standing.  Although the Obama Administration defended DOMA when it was challenged at the trial court level, the Administration refused to defend it on appeal.  Instead, a group of House Republicans, the BLAG (Bipartisan Legal Advisory Group) was allowed to intervene to defend the statute.  It is possible the Court will rule that the BLAG does not have a legal right to be in the case—it does not have a constitutional right to defend a statute nor does it have a particular interest or injury to exonerate.


If the Court reaches the merits of the case, it appears there are at least five votes to hold DOMA unconstitutional.  The four liberal justices appear to agree that the statute is a violation of equal protection even under rational basis scrutiny as there appeared to be no rational basis for treating married same-sex couples differently from married opposite-sex couples.  As Justice Breyer said, “I can’t think of any.” Justice Kagan questioned BLAG’s attorney, Paul Clement, when he argued that the reason for enacting DOMA was to ensure uniformity of how married couples were treated across the country.  Justice Kagan pushed back, saying, “Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus?”  She then quoted from the House Report:  “Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.’  Is that what happened in 1996?”  This prompted Mr. Clement to respond, “Does the House Report say that? Of course, the House Report says that. And if

that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”


Justice Kennedy appeared to be ready to strike down DOMA on other grounds, suggesting that Congress may have exceeded its authority in enacting DOMA by regulating marriage, which has traditionally been the role of the States.  He questioned: “But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”


A ruling by the Supreme Court to strike down DOMA as unconstitutional – and there appeared to be five votes to do so – would put an end to this “skim milk” marriage.  We will most likely have to wait until June to find out.