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Cypen & Cypen

JUNE 28, 2013

Stephen H. Cypen, Esq., Editor

FEDERAL DEFENSE OF MARRIAGE ACT:  The State of New York recognizes marriage of New York residents Edith Windsor and Thea Spyer, who wed in Canada in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by §3 of the federal Defense of Marriage Act, which amended the Dictionary Act -- a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations -- to define “marriage” and “spouse” as excluding same-sex partners. Windsor paid over $350,000 in estate taxes, and sought a refund, which the Internal Revenue Service denied. Windsor brought a refund suit, contending that DOMA violates principles of equal protection incorporated in the Fifth Amendment. While that suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend §3’s constitutionality. In response, the Bipartisan Legal Advisory Group of the House of Representatives voted to intervene in the litigation to defend §3’s constitutionality. The District Court permitted the intervention. On the merits, the court ruled against the United States, finding §3 unconstitutional and ordering the Treasury to refund Windsor’s tax.  The United States has not complied with the judgment.  On certiorari, the United States Supreme Court held that it had jurisdiction to consider the merits of the case. This case clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court but the Executive’s decision not to defend §3’s constitutionality in court while continuing to deny refunds, and assess deficiencies introduces a complication. Given the government’s concession, amicus contends, once the district court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elides the distinction between Article III’s jurisdictional requirements and the prudential limits on its exercise, which are essentially matters of judicial self-governance. Here, the United States retains a stake sufficient to support Article III jurisdiction on appeal and in the Supreme Court. The refund it was ordered to pay Windsor is a real and immediate economic injury, even if the Executive disagrees with §3 of DOMA. Windsor’s ongoing claim for funds the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction.  DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.  DOMA’s operation is directed to a class of persons that the laws of New York, and of 11 other states, have sought to protect. Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.  DOMA rejects this long-established precept. DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their state, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same state. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect.  In a 5-4 decision, the U.S. Supreme Court affirmed unconstitutionality of §3 of DOMA.  United States v. Windsor, Case No. 12-307 (U.S. June 26, 2013).
WHERE CALIFORNIA OFFICIALS ELECTED NOT TO SEEK REVIEW OF TRIAL COURT’S DECLARATION OF PROPOSITION 8’s UNCONSTITUTIONALITY, INTERVENOR/INITIATIVE PROPONENTS DID NOT HAVE STANDING TO APPEAL:  After the California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution, state voters passed Proposition 8, a ballot initiative amending the State Constitution to define marriage as a union between a man and a woman. Same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and naming as defendants California’s Governor and other state officials responsible for enforcing California’s marriage laws. The officials refused to defend the law so the district court allowed petitioners -- the initiative’s proponents – to intervene to defend it. The trial court declared Proposition 8 unconstitutional and enjoined the public officials from enforcing the law. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the state’s interest in defending constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8’s constitutionality. On the merits, the court affirmed the district court’s order.  On certiorari, the United States Supreme Court held (5-4) that the petitioners did not have standing to appeal the district court’s order.  Article III of the Constitution confines judicial power of federal courts to deciding actual cases or controversies. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. In other words, the litigant must seek a remedy for a personal and tangible harm. Article III demands that an actual controversy persist throughout all stages of litigation, including appellate review. Petitioners, who intervened in trial court, had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As the Supreme Court has repeatedly held, such a generalized grievance, no matter how sincere, is insufficient to confer standing. Petitioners have no personal stake in defending enforcement of Proposition 8 that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, is not a particularized interest sufficient to create a case or controversy under Article III. The Supreme Court does not question California’s sovereign right to maintain an initiative process or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law.Hollingsworth v. Perry, Case No. 12-144 (U.S. June 26, 2013).

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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