Windsor and Hollingsworth: Shifting Tides in the Battle for Marriage Equality

January 29, 2014Articles
As seen in The Kentucky Bar Association’s Bench & Bar January 2014 issue (Page 4)

Of all of the Supreme Court decisions in recent years, few have drawn more public interest (or outcry, depending on an individual’s political school of thought) than United States v. Windsor and Hollingsworth v. Perry and few Court decisions have impacted (if not legally, at least emotionally) the LGBT population in the same manner and scope as these cases. For many, however, the idea that the Supreme Court could reach two very different conclusions on what may initially appear to be the same legal issue has caused some to challenge the rational of those decisions.

To be clear, while both Windsor and Hollingsworth dealt with the issue of same-sex marriage, the cases called into question very different laws, and raised particularly distinct issues with regard to standing. It is because of the latter that the Supreme Court could reach the merits in Windsor, while refusing to do so in Hollingsworth. This article will distill the facts and opinions of both cases, and explain why these two cases to date are the most important battles for marriage equality.

United States v. Edith Windsor: The Fall of (Section 3 of) DOMA

United States v. Windsor1 was the recent opinion of the Supreme Court of the United States addressing the constitutionality of certain provisions of the Defense of Marriage Act2, which was enacted in 1996 by the federal government to “define and protect the institution of marriage.” Primarily at issue in Windsor was Section 3 of the Defense of Marriage Act, which provided that “[i]n determining the meaning of any Act of Congress . . . the word ‘marriage’ 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.” Section 2 of the Defense of Marriage Act, which was not directly impacted by the Court’s decision, provides that “[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

Windsor arose out of the Executive branch’s application of the spousal exemption to the Federal estate tax, which provides that a decedent’s gross estate is reduced, dollar for dollar, by any property that passes, or previously passed, from the decedent to his surviving “spouse.”3 Because “spouse” was defined under the Defense of Marriage Act to only include heterosexual couples for Federal purposes, similarly-situated homosexual couples were denied this exemption and homosexual decedents who were married under applicable state laws were subjected to a tax that did not apply to heterosexual couples.

This distinction became a considerable monetary issue for Edith Windsor in 2009. In February of 2009, Edith lost her wife of two years and her partner of forty-four years, Thea Spyer, after Thea succumbed to a long battle with multiple sclerosis. Thea left behind a fairly hefty estate, surpassing the blanket Federal estate tax exemption of $5,000,000.00, and incurring an estate tax of $363,053.00. Despite having been married in 2007 in Canada and the subsequent recognition of Thea and Edith’s marriage by their state of residence, the State of New York, Edith did not qualify as Thea’s “spouse” for purposes of the spousal exemption from the Federal estate tax because of Section 3 of the Defense of Marriage Act. Though the Obama Administration had disavowed the constitutionality of the Defense of Marriage Act4, the Internal Revenue Service continued to enforce that law and demanded that Edith pay the tax.

Windsor paid the estate tax due, and filed a refund action in the District Court for the Southern District of New York against the United States. Windsor’s primary contention was that she was entitled to the spousal exemption from the Federal estate tax, and that the Defense of Marriage Act was unconstitutional because the statute violated the guarantee of equal protection under the Fifth Amendment. The Bipartisan Legal Advisory Group (BLAG), a group representing the interests of the House of Representatives, sought to intervene in the District Court action to defend the constitutionality of the Defense of Marriage Act, and the motion to intervene was granted. The District Court eventually concluded that Windsor was entitled to a refund. Both the United States and the BLAG appealed that ruling to the Second Circuit Court of Appeals, which affirmed the District Court’s opinion, and then both the United States and the BLAG sought and were granted certiorari by the Supreme Court of the United States.

In a 5-4 decision, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment and, therefore, was unconstitutional. The Court noted that the Defense of Marriage Act’s “demonstrated purpose [was] to ensure that if any State decide[d] to recognize same-sex marriage, those unions [would] be treated as second-class marriages for purposes of federal law” and DOMA thereby wrote “inequality into the entire United States Code” in more than one thousand statutes governing Social Security, housing, taxes, and veterans’ benefits.5 The Court also stated that “DOMA’s principal effect [was] to identify a subset of state-sanctioned marriages and make them unequal”6 and “[t]he avowed purpose and practical effect of the law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”7 This disability imposed by the Defense of Marriage Act on a specific class of individuals, who are otherwise considered legally married in their state of residence, was found to violate the Fifth Amendment’s Due Process Clause and, therefore, was unconstitutional.

The majority also grounded its ruling in principles of federalism, stating that the Defense of Marriage Act was a departure from tradition because, “[b]y history and tradition[,] the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”8 Though the Court acknowledged that in certain, limited circumstances Congress had passed legislation impacting marital rights, DOMA had a far greater reach and, therefore, infringed on the “virtually exclusive province of the States” to define and regulate marriage.9

An additional controversial legal issue presented in Windsor was the existence of standing. As mentioned previously, the Obama Administration issued a Section 530D notice to the Speaker of the House of Representatives, claiming that the United States would no longer defend the constitutionality of the Defense of Marriage Act and, in the United States’s brief on the merits, the Justice Department asked that the Second Circuit Court of Appeals’s determination that Section 3 of the Defense of Marriage Act was unconstitutional be upheld. Both actions signaled that the original plaintiff’s and original defendant’s interests were now wholly aligned, suggesting that no actual case or controversy existed.

To resolve this standing issue, the majority drew a distinction between the legal requirements for Article III standing – that is (1) injury in fact, (2) a causal connection between the injury and the challenged action, and (3) a likelihood that injury will be redressed by a favorable decision10 – and the rules of prudential standing, which the Court deem to be “essentially matters of judicial self-governance.”11 The Court concluded that the legal requirements for Article III standing were satisfied because the United States had a real interest in the proceedings before the Court – namely, affirmance of the Second Circuit’s judgment would require that the United States Treasury refund the estate tax paid, which is a “real and immediate economic injury.”12 The Court likened the Executive’s continued enforcement of the statute despite its opinion that the Defense of Marriage Act was unconstitutional to the facts presented in INS v. Chadha.13 The Court concluded that, so long as the party requesting relief retains some stake in the appeal, that party maintains standing to appeal the lower court’s decision and the requirements of Article III are met.14

Though the Court also notes that the Executive’s position in the case could result in a “friendly, non-adversary, proceeding” instead of a “real, earnest and vital controversy,” the Court concluded that the appointment of an amici curiae to fully develop the record and ensure the adversarial presentation of the issues was sufficient to satisfy the prudential requirements.15 Further, the Court stated that, even though concerns related to prudential standing may exist, the Court should issue an opinion on the merits because otherwise (1) there would be a lack of precedent for lower courts to follow, (2) hundreds of thousands of people would be subjected to continuing discrimination, and (3) courts would have to entertain extensive litigation.16 Given all of the foregoing, the Court determined that the case was justiciable and sufficient standing did exist to enable the Court to reach the merits of the case. In fact, six justices, including one dissenting justice, agreed that standing did exist in this case.17

The Chief Justice’s separate dissent predominantly conveyed two messages: (1) in his opinion, the Defense of Marriage Act was a constitutional act of Congress because Congress had an interest in uniformity and stability, and (2) the majority effectively limited its analysis to Section 3 of the Defense of Marriage Act and provided further insulation for Section 2 of the Act by relying at least in part on federalism in its opinion.18

Justice Scalia offered a particularly frothing dissent, chock full of rhetorical questions, in which he contended that (1) a justiciable case or controversy did not exist and (2) it is not always the Supreme Court’s role to determine “all constitutional questions” “when an Act of Congress is alleged to conflict with the Constitution.”19 Scalia maintained that the determination of whether a statute infringes the Constitution is ancillary – purely “by accident” – to resolving a dispute otherwise properly before the Court.20 As to whether a justiciable case or controversy existed, Scalia claimed that Article III requires “a plaintiff (or appellant) who has standing to complain [and] an opposing party who denies the validity of the complaint.”21 Because Windsor’s injury was cured by the District Court, and the Executive branch did not ask the appellate courts to reverse the ruling, Scalia concluded that no case or controversy existed, and, therefore, Article III standing requirements were not met.

Despite his allegation that the Court lacked jurisdiction to decide the merits of the case, Justice Scalia took his turn to pass upon the merits of the case as well. Justice Scalia concluded that the Defense of Marriage Act was enacted for legitimate reasons, one of which was to settle potentially difficult conflict of laws questions related to the status and validity of a homosexual couple’s marriage for federal purposes.22 Further, Scalia alleged that the Act allowed Congress to make determinations about policies it wanted to encourage, which was supposedly evidenced by providing “a special estate-tax exemption . . . [for] only opposite-sex spouses.”23

Justice Alito also penned a dissenting opinion in which he challenged the merits of the majority’s findings, but agreed that standing was present. As to the merits of the issue, Justice Alito asserted that “[t]he Constitution does not guarantee the right to enter into a same-sex marriage,” and that a right for same-sex marriage cannot be founded in substantive due process because same-sex marriage is not a “fundamental right[ ] and libert[y] which [is], objectively, ‘deeply rooted in this Nation’s history and tradition.”24 Instead of a justiciable case, Justice Alito felt that the issue presented to the court was more of a political question and represented an end-run by the plaintiff to force the Court to ordain which school of political thought was the rule of the land.25 Justice Alito concluded that the Fifth Amendment was not violated by the Defense of Marriage Act, and, therefore, the majority erred in its opinion.

In conclusion, Windsor ruled Section 3 of the Defense of Marriage Act unconstitutional under the Fifth Amendment Due Process Clause despite serious consideration as to whether standing was present. The majority concluded that a “case or controversy” did exist and the United States did have Article III standing by virtue of the fact that the lower courts’ decisions required that the government issue a refund. Further, though the dissenting justices believe the majority trapped themselves in their opinion by relying on principles of federalism, their opinions seem to casually ignore the multiple caveats the majority includes in their analysis. In fact, the majority twice notes that States may define what constitutes a marriage within its borders, “subject to constitutional guarantees.”26 Therefore, though the dissenting justices all indicate that the majority’s opinion is limited to the confines of federalism and state definitions of marriage, the majority has left themselves a window for future marriage equality cases to pass through, and preserved the Court’s ability to analyze the validity of state-specific restrictions on same-sex marriage.

Hollingsworth v. Perry: Voter-Led Prohibitions of Same-Sex Marriage

Hollingsworth v. Perry27 was the Supreme Court’s opinion related to the constitutionality of Proposition 8. In 2008, the California Supreme Court concluded that limiting the definition of marriage to only include heterosexual couples violated the Equal Protection Clause of the California Constitution.28 Shortly thereafter, California voters passed the ballot initiative known as Proposition 8, which overruled the California Supreme Court’s decision and amended California’s Constitution to state that “[o]nly marriage between a man and a woman is valid or recognized in California.”29

The plaintiffs in Hollingsworth, two same-sex couples who were unable to marry as a result of Proposition 8, filed suit in federal court against California’s governor, attorney general, and various other state and local officials, and alleged that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. All California officials named as defendants in the action refused to defend the law, so the District Court allowed the official proponents of Proposition 8 to intervene to defend the amendment’s constitutionality.30 The District Court eventually concluded that Proposition 8 was unconstitutional and enjoined the enforcement of the ban on same-sex marriage.

The proponents of Proposition 8 appealed the District Court’s ruling to the Ninth Circuit Court of Appeals, and that appellate court was advised, by certified question to the California Supreme Court, that the proponents of Proposition 8 had authority “to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.”31 The Ninth Circuit Court of Appeals concluded that Proposition 8 violated the Equal Protection Clause because California removed “a right or benefit from one group but not others” without a legitimate reason for withdrawing that right.32 The proponents of Proposition 8 filed a petition for writ of certiorari, which the Supreme Court of the United States granted.

In another 5-4 decision and what may be one of the oddest combinations of Supreme Court Justices to sign such a politically decisive opinion33, the Supreme Court concluded that the proponents of Proposition 8 lacked standing to appeal the District Court’s determination. The majority reasoned that the proponents of Proposition 8 lacked standing because the District Court’s opinion did not cause any individual or personal injury to the proponents; rather, the proponents’ contentions merely represent “generalized grievances” because the District Court’s determination impacted the proponents “no more directly . . . than it [did] the public at large.”34 The Court also concluded that the special role bestowed on the proponents under the California Election Code did not vest any role of enforcement in those individuals.

Further, the majority concluded that the California Supreme Court could not vest authority in private individuals to assert the validity of Proposition 8 in an Article III court. While certain public officials may represent the State’s interest35, the majority concluded that same right does not extend to private individuals.36 The majority concluded that “standing in federal court is a question of federal law,” and, therefore, the California Supreme Court’s determination that the proponents had standing was insufficient to grant standing, thereby preventing the Court from reaching the merits of the dispute.

The dissenting justices relied primarily on one important fact in their analysis: the issue of standing before the Court was a question of state-law related to “how California defines and elaborates the status and authority of an initiative’s proponents who seek to intervene in court to defend the initiative after its adoption by the electorate.”37 The dissent concluded that, since this is an issue of state law, the California Supreme Court has the last say on that matter, and the Supreme Court of the United States has no basis to set aside that determination of state law.38 Since the California Supreme Court had affirmatively stated that the proponents of Proposition 8 had authority to defend the constitutionality of the ballot initiative, Article III standing was met in the same manner it would have been had Californian officials chosen to defend Proposition 8.

Hollingsworth resulting in the reversal of the Ninth Circuit Court of Appeals opinion, leaving the District Court’s determination that Proposition 8 was unconstitutional under the Due Process and Equal Protection Clauses intact. The practical impact is that Proposition 8 was struck down, but Hollingsworth presents no legally binding precedent with regard to the constitutionality of same-sex marriage bans.


Though the Supreme Court’s opinions in Windsor and Hollingsworth revolved around the issue of marriage equality, the actual legal issues presented in those cases were very distinct, resulting in two different very conclusions as to whether standing existed. In Windsor, the Court held that standing did exist because the United States had suffered a direct injury by being required to issue a refund to Edith Windsor. However, in Hollingsworth, the Court concluded that standing did not exist because proponents of a ballot initiative only represent generalized grievances shared by all tax payers, and, therefore, cannot satisfy the injury in fact requirement necessary to confer Article III standing.

How the Court’s majority opinions will be construed and utilized in the future is anyone’s guess, but one thing is certain: the majority in Windsor left powerful authority for individuals challenging same-sex marriage bans and is definitely a “win” in the battle for marriage equality.


(1) 122 S. Ct. 2675 (2013). 
(2) 1 U.S.C. § 7. 
(3) 26 U.S.C § 2056(a). 
(4) In fact, one complication that arose during this case was related to the 28 U.S.C. § 530D notice the Attorney General of the United States sent to the Speaker of the House of Representatives stating that the Obama Administration would no longer defend the constitutionality of the Defense of Marriage Act. This notice was sent before any judicial adverse action was issued, making the scenario quite odd, and created a wrinkle, in some of the Justice’s opinions, as to whether the United States could appeal the District Court’s ruling. 
(5) United States v. Windsor, 133 S. Ct. 2675, 2693-94 (2013). 
(6) Id. 
(7) Id. at 2693. 
(8) Id. at 2689-90. 
(9) Id. at 2691. The Court noted, however, that the States ability to regulate domestic relations is limited and any regulation of the institution of marriage must respect the constitutional rights of persons. Id. (citing Loving v. Virginia, 388 U.S. 1 (1967)). 
(10) Id. at 2685 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62 (1992)). 
(11) Id. (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
(12) Id. at 2868 (quoting Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599 (2007) (plurality opinion)). As Justice Kagan pointed out during oral argument, “whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury.” Transcript of Oral Argument, United States v. Windsor, at 14.
(13) 462 U.S. 919 (1983). In Chadha, the Executive had presented to the Court of Appeals that it believed the statute at issue was unconstitutional, but also indicated it would continue to abide by the statute. For purposes of Article III standing, the Court in Chadha stated that the phrase “case or controversy” requires that the Court’s “decision will have real meaning.” Id. at 939-40. 
(14) 122 S. Ct. at 2687. 
(15) Id. 
(16) Id. at 2688. 
(17) See id. at 2711 (Alito, J. dissenting). 
(18) Id. at 2697 (Roberts, C.J. dissenting) (“The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells. . . . [T]hat power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions.”) 
(19) Id. at 2698 (Scalia, J. dissenting) 
(20) Id. at 2699. 
(21) Id. at 2701 (emphasis in original deleted). What is interesting is that Justice Scalia seems to forget (or ignore) that a separate party, the BLAG, was allowed to intervene as a party of interest in the suit and was asking that the lower court’s ruling be overturned. 
(22) Id. at 2708. 
(23) Id.
(24) Id. at 2714 (Alito, J. dissenting) (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). 
(25) Id. at 2718. 
(26) Id. at 2692 
(27) 133 S. Ct. 2652 (2013) 
(28) In re Marriage Cases, 183 P. 3d 384 (Cal. 2008)
(29) Cal. Const. Art. I, § 7.5.
(30) Hollingsworth v. Perry, 133 S. Ct. at 2660.
(31) Perry v. Brown, 265 P. 3d 1002, 1007 (Cal. 2011). 
(32) Hollingsworth, 133 S. Ct. at 2661 (citing Romer v. Evans, 517 U.S. 620 (1996)).
(33) The majority in Hollingsworth v. Perry was composed of Chief Justice Roberts and Justices Scalia, Ginsburg, Breyer, and Kagan.
(34) Id. at 2662 (quoting Lujan, 504 U.S. at 573-74).
(35) Karcher v. May, 484 U.S. 72 (1987).
(36) Hollingsworth, 133 S. Ct. at 2666.
(37) Id. at 2668 (Kennedy, J. dissenting).
(38) Id. at 2670.