Teaching United States v. Windsor: The Defense of Marriage Act and its Constitutional Implications
33 Pages Posted: 20 Jul 2013
Date Written: July 19, 2013
Students are captivated by contemporary, high-profile Supreme Court cases. They recognize the litigants featured on the news, they debate the public policy, sociological and other real world implications of the arguments in school and their peers and parents prod them to discuss their opinions outside of class. I incorporate very recent and noteworthy Supreme Court cases in my legal studies courses with great success. My students are more engaged and prepared than when I assign a textbook chapter (students would rather track the law as it develops in real time). They tend to recall the arguments and legal theories well past the final examination. My approach is simple. I assign the entire opinion as well as a background article that broadly evaluates the legal and public policy issues. We then synthesize the critical issues (including the business implications) as a class where I am often forced to stop the discussion and move on. This is a professor’s dream -- especially with undergraduates enrolled in a required class. This article represents the background material I utilize to teach same sex marriage and the United States v. Windsor case.
This article explores the public policy and legal background of the Windsor case in five parts. Part I introduces the issue and evaluates how states are responding to competing pressures to legalize same sex marriage or protect traditional marriage. Part II demystifies the legal background of the case. It analyzes the Fifth and Fourteenth Amendment Due Process Clauses, the Equal Protection Clause, the constitutional doctrines of Standing, Substantive Due Process and Incorporation as well as the Defense of Marriage Act. Part III lays out the facts of the case and some background on Edith Windsor and Thea Spyer. Part IV analyzes the lower court opinions as well as the Supreme Court decision and impassioned dissents. Part V concludes. The appendix contains fifteen tough questions taken from the justices’ comments at oral argument. It is good practice to struggle through the answers as the advocates did in the courtroom that day.
In the end, Edith Windsor came out a winner. She will receive her refund and the satisfaction that her vision of how the government should treat marriage has prevailed. This is only the first step in the battle however, as the argument moves from the federal definition of marriage to state prohibitions of same sex marriage. The focus will shift to whether the five-justice majority in Windsor will hold when these tougher cases hit the high Court. Time will tell but you and your students will be more prepared for that discussion after reading and debating this article.
Keywords: same sex marriage, Defense of Marriage Act, constitutional law, Substantive Due Process, Incorporation, Full Faith & Credit Clause, Standing, DOMA, Edith Windsor, BLAG, Due Process Clause, Equal Protection Clause
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