Blog of the International Journal of Constitutional Law

Marry me or tax me? That is the constitutional question

Angelique Devaux, French Licensed Attorney (Notaire), LL.M. in American Law (Indiana University Robert H. McKinney School of Law)

To marry or tax me. This could be the modern Shakespeare quote heard in the oral arguments last March 27th at the US Supreme Court in the pending case Windsor v. United States. But it is more about a story that happened in several jurisdictions around the world facing the same controversial legal and constitutional issue: whether your government should define marriage as an opposite-sex couple only, or not …?

This post explains for readers how the case came to be, and it situates its significance within a larger comparative context.

This American love story started many years ago between Edith Windsor and Thea Spyer, a lesbian couple. They were both residents in New York, when in 2007 they formalized their relationship and got married in Toronto, Canada (where a foreign couple can get a marriage certificate without residing in Canada). Two years later, Spyer died. Although New York legally recognized same-sex marriage performed in another jurisdiction, federal law applied a different rule.

Under the Defense of Marriage Act (DOMA, enacted by Congress in 1996), the US Federal government does not recognize same-sex marriage as legally binding. More precisely, section 3 of DOMA defines the term marriage as “a legal union between one man and one woman as a husband and a wife” and spouse as “a person of the opposite sex who is husband and wife.” Therefore, at Spyer’s death, Windsor was required to pay more than $363,000 in federal estate taxes on her inheritance of her wife’s estate. Had federal law accorded to their marriage the same status as opposite-sex marriage recognized by their state, Windsor would not have had to pay taxes on account of the unlimited marital deduction.

In 2012, the US district court of the Southern District of New York ruled that Section 3 of DOMA violated the equal protection right guaranteed by the Fifth Amendment of the US Constitution, and that Windsor should be repaid the estate taxes she had paid plus interest. While the Justice Department filed a notice of appeal to defend the statute, the Second Circuit Court of Appeals upheld the lower court’s ruling, writing in its majority opinion that “it is easy to conclude that homosexuals have suffered a history of discrimination.” Following that decision, the Department of Justice filed its own petition for certiorari with the Supreme Court.

Well before deciding the question whether DOMA is contrary to the Constitution, the five Justices of the US Supreme Court must consider whether they even have jurisdiction to decide on this issue. The same debate occurred in France in January 2011. The French Constitutional Council declared that it was not its role to substitute its judgment for that of the lawmakers, even though the case posed the question whether defining marriage as a union between a man and a woman was in accordance with the rights and freedoms guaranteed by the French Constitution.

In Windsor, should the Court rule that it does not have jurisdiction because of the Obama administration’s decision not to defend DOMA, the Second Circuit’s ruling would govern, making DOMA unconstitutional and unenforceable in the states within the Second Circuit.  The broader question of DOMA’s constitutionality would be left for another day.

Declining jurisdiction would leave open many questions. For instance, who is the appropriate party to define the concept of marriage?  Proponents of DOMA, defended by the BLAG (the Bipartisan Legal Advisory Group, which has taken it upon itself to defend DOMA in light of the Obama administration’s refusal to do so), claim that there is no federalism problem: DOMA protects the states’ sovereignty because the states can independently decide to refuse same-sex marriages and to define marriage for themselves under state law. In contrast, opponents argue that state sovereignty is hampered by the federal government’s definition of marriage, which bans benefits to already-married same-sex couples under 1,100 laws and programs, instead of leaving the definition to each individual state, which traditionally had the authority to regulate marriage.

By comparison in the European Union (EU), no member State prohibits same-sex marriage in its constitution. The main reason may be that admission into the EU requires non-discrimination. Even though European legislation tends to unify family law rules implanting regulations on divorce or succession, the scope of marriage is reserved to the States as well. The European Parliament has several times proclaimed being in favor of same-sex marriage, but the member States are either not bound or sanctioned; only six States (The Netherlands, Belgium, Spain, Portugal, Sweden and Denmark) have modified their national law.

The European issue of same-sex marriage is continuously treated by courts somewhere between prudence and activism. In the 2010 case Schalk and Kopf v. Austria, a question was sent to the European Court of Human Rights concerning Austria’s failure to legally recognize same-sex marriage. The claimants argued that this constituted a violation of Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention of Human Rights (ECHR). While admitting that same-sex couples may enjoy a “family life”, the Court held that there was no violation to ECHR, and that the Charter simply leaves the States to decide whether they wish to afford homosexual couples the right to marry. The Court emphasized that national authorities were best positioned to assess and to respond to the needs of society in the absence of universal consensus.

Two years later, the court held that distinction in the scope of adoption rights between a same-sex couple bound by a civil solidary pact (PAC) and an opposite-sex married couple is not a violation of either Article 8 and 14 since PACS and marriage are not the same legal institution. However, Judges Costa and Spielmann in Gas and Dubois v. France took a step forwards calling France to revisit the issue in line with contemporary social reality (Both French Assemblies have recently voted for same-sex marriage).

More recently a new threshold was reached in X and others v. Austria: Austrian adoption law prohibiting rights to same-sex unmarried couples and allowing it to opposite-sex unmarried couples was judged discriminatory. Now the sexual preference is pointed out. The Court thus does not seem to be absolutely opposed to overturning its jurisprudence in the future hand-in-hand with the States.

In fact such a legal problem is more a matter of responsibility to change a law rooted in tradition. The current substantive issue of whether DOMA violates the equal protection’s Constitutional right of same-sex couples legally married under a State law is clear. Defenders of same-sex marriage in their oral arguments expressed that “it is time for the Court to recognize that this is discrimination” and that “excluding lawfully married gay and lesbian couples from federal benefits cannot be reconciled with” the “freedom commitment to equal protection under law”. Similar arguments were used when the Portuguese Constitutional Council held in 2007 that banning same-sex marriage is discrimination based on sexual orientation. These arguments are also the current weapon of French socialists in the race for change.

The US Supreme Court does not have to rely on foreign legislation to determine the constitutionality of DOMA. The only realistic way to rule differently in this case would be to decline jurisdiction, which might be a way out for the judges … until the next love story case comes along.

Suggested Citation: Angelique Devaux , Marry Me or Tax Me? That is the Constitutional Question, Int’l J. Const. L. Blog, April 29, 2013, available at:


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