Windsor v. U.S.

Brief Filed: 9/16/12
Court: U.S. Court of Appeals for the Second Circuit
Year of Decision: 2012

Read the full-text amicus brief (PDF, 171KB)


At challenge is the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), the section that defines the term 'marriage,' for all federal purposes, as "a legal union between one man and one woman as husband and wife," and thus requires the federal government to disregard marriages of same-sex couples.

Index Topic

Marriage Equality


This lawsuit is a challenge to the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), the section that defines the terms 'marriage' as "a legal union between one man and one woman as husband and wife" and 'spouse' as "a person of the opposite sex who is a husband or a wife." Section 3 prevents the federal government from recognizing the marriages of same-sex couples who are legally married in their own states and restricts the federal government from granting such couples any federal benefits it provides to opposite-sex married couples.

In this case, Edie Windsor and Thea Spyer shared their lives together as a couple in New York City for over 40 years. They were married in Canada in 2007. Spyer died in 2009, at which time New York legally recognized same-sex marriages performed in other jurisdictions. After Spyer’s death Windsor was required to pay more than $363,000 in federal estate taxes on her inheritance. If federal law accorded their marriage the same status as heterosexual marriages recognized by their state, she would have paid no taxes. She challenged Section 3 of DOMA, which limits federal recognition of marriage only to opposite-sex marriages.

In February 2011, President Obama and Attorney General Eric Holder concluded that Section 3 of DOMA is unconstitutional and inappropriate to defend. Thereafter, the Bipartisan Legal Advisory Group (BLAG) intervened on behalf of the leadership in the U.S. House of Representatives to defend DOMA. Plaintiff moved for summary judgment in June of 2011, and New York Attorney General Eric Schneiderman filed a brief supporting Windsor’s clam on July 26, 2011, arguing that DOMA Section 3 cannot survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage." On Aug. 1, BLAG filed its brief seeking summary judgment on the grounds that marriage is not a fundamental right and that classification based on sexual orientation is not subject to heightened scrutiny. On June 6, 2012, Judge Jones ruled that, based on rational basis review, Section 3 of DOMA is unconstitutional as applied in the case as it violated plaintiff’s rights under the Equal Protection Clause of the Fourteenth Amendment and ordered Windsor receive the tax refund due her.

The Justice Department filed a notice of appeal in June 2012, despite its approval of the ruling, to facilitate BLAG's defense of the statute. BLAG filed a motion to dismiss the DOJ’s Second Circuit appeal on July 19, claiming that DOJ lacks standing because it prevailed in the District Court. Windsor’s attorneys filed a petition of certiorari before judgment with the Supreme Court. The DOJ replied to BLAG’s motion to dismiss on Aug. 3, asserting (1) its standing as an "aggrieved party" because the District Court’s stay prevents DOJ from taking steps to cease enforcement of Section 3 of DOMA, and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.

Oral arguments were heard Sept. 27, 2012.

APA's Position

APA’s brief, in support of Windsor, is joined by the American Psychiatric Association, the National Association of Social Workers (and its New York City and State Chapters), the American Academy of Pediatrics, the American Psychoanalytic Association and the New York State Psychological Association. The brief is similar to the briefs APA previously filed in the U.S. Court of Appeals in the First Circuit (Gill v. Office of Personnel Management) and in the U.S. Court of Appeals for the Ninth Circuit (Golinski v. Office of Personnel Management).

The brief applies social science research to rebut some of the justifications offered for the prohibition in Section 3 of DOMA of any federal recognition of the marriages of same-sex couples. Those justifications, involving procreation, the welfare of children and the like, are closely similar to those offered in cases defending states’ refusal to allow same-sex couples to marry. The amicus brief provides extensive psychological research on key points, including how homosexuality is a normal expression of human sexuality, is generally not chosen, and is highly resistant to change. Also provided is current scientific research on the nature of same-sex relationships, the role of child-rearing, and the stigma resulting from denying the label "marriage" to same-sex unions. For example, the brief cited psychological research showing that gay and lesbian parents are not any less fit or capable than heterosexual parents, and that their children are not less adjusted. The brief also addresses how denying federal recognition to legally married same-sex couples stigmatizes them.


On Oct. 18, 2012, the Second Circuit Court of Appeals upheld the lower court’s ruling that Section 3 of DOMA is unconstitutional. In a 2-1 opinion, the Second Circuit became the first federal appeals court to hold that laws that classify individuals based on sexual orientation should receive a more exacting level of judicial review, known as "heightened scrutiny."