United States v. Windsor and its Progeny: Implications for U.S. Bilateral and Multilateral Engagement
In its much anticipated opinion in United States v. Windsor, a five-justice majority led by Justice Kennedy held that Section Three of the Defense of Marriage Act (DOMA), which defined marriage as a union between one man and one woman, unconstitutionally discriminated against individuals in state-recognized same-sex marriages in violation of the due process clause of the Fifth Amendment. In so doing, the Court determined that the federal government could no longer exclude these individuals from the thousands of federal benefits and responsibilities accrued by virtue of marital status. In the months following the decision, lower courts have extended Windsor to address the constitutionality of state restrictions on marriage as well as other areas of sexual orientation discrimination. This Insight reviews the underpinnings of the Windsor decision and its effects to date on sexual orientation litigation. It then explores the opportunities Windsor presents for the United States to strengthen and advance its global engagement on LGBT human rights issues.
Enacted in 1996, DOMA Section Three mandated that only opposite-sex married individuals were entitled to a broad range of federal benefits accorded on the basis of marital status, including in the areas of estate inheritance laws, insurance and healthcare benefits for government employees, hospital visitation rights, and domestic violence victim protection. By the time Windsor reached the Supreme Court, this provision affected individuals in same-sex marriages recognized by eleven states and the District of Colombia.
Justice Kennedyâs majority opinion in Windsor combined a mixture of due process, equal protection, and federalism principles to find Section Three unconstitutional. The statesâ primacy in defining and regulating marriage features prominently in the opinion, which scrutinizes Section Three all the more carefully because it posed a direct conflict with New Yorkâs decision to treat all marriages equally, a decision the majority praised for its âevolving understanding of the meaning of equality.â Citing Lawrence v. Texas, the majority drew a parallel between that decisionâs protection of same-sex intimate conduct and New Yorkâs recognition of same-sex relationships by according them, and the lawful conduct performed within them, a lawful status. Section Three, however, was found âto ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages . . . for purposes of federal lawâ and the Court could identify no legitimate purpose that could overcome its discriminatory purpose and effect.
Left unresolved to the dissenting justices and the reader alike was whether the decisionâs federalism and due process/equal protection bases were inextricably linked or rather whether the latter interests, standing alone, could muster the same constitutional result absent federalism concerns. Eight months after Windsor was decided, however, the full scope of its reach is beginning to take shape. Since that time, federal district courts in Texas, Virginia, Utah, and Oklahoma have relied on Windsor to overturn state marriage bans. State officials and state courts are also paying heed; state officials in Virginia, Pennsylvania, New Jersey, and Nevada have cited Windsor as a decisive factor in their decisions to abandon their defense of state bans and New Mexico and New Jersey courts have relied on the decision to find that civil unions, now resulting in the denial of federal benefits, cannot substitute for state recognition of same-sex marriage. Courts in Kentucky, West Virginia, Illinois, and Ohio have addressed some related aspect of marriage equality post-Windsor, and all have held in support of greater recognition of same-sex marriage. Windsor also has factored into courtsâ analyses of other sexual orientation discrimination claims, resulting in greater protections in the areas of jury selection, employment and retirement benefits, and parental rights. However ambiguous its reach may have been at the time, Windsor is proving to be a catalyst against discrimination on account of sexual orientation.
As the domestic legal landscape continues to shift, Windsor and the cases following it are useful contributions to the Obama Administrationâs foreign policy agenda. Whereas previous administrations have eschewed engagement on LGBT issues, the Obama Administration has made advancing the human rights of LGBT persons a key component of its broader international human rights platform, and has placed significant import in its bilateral and multilateral discourse on leading by example â including by acknowledging the United Statesâ own domestic challenges. Under the Obama Administration, the United States has, among other multilateral initiatives, helped spearhead the first UN resolution condemning human rights violations committed against LGBT individuals and has worked with the Inter-American Commission on Human Rights (IACHR) to establish a unit dedicated to LGBT human rights. In December 2011, President Obama broadened bilateral and multilateral engagement by requiring all federal agencies engaged overseas to develop and periodically report to the State Department on initiatives to âensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons,â thereby building the first U.S. government-wide strategy to protect LGBT human rights abroad.
Because seventy-six countries still have laws in force that criminalize same-sex conduct, U.S. engagement on LGBT human rights is heavily focused on decriminalization and related rights and freedoms, most notably the right to privacy and the freedoms of assembly, association, and expression for LGBT individuals and their advocates. At the UN, the United States has banded together with allies, mostly European and Latin American states, to push for the recognition of violence against LGBT people and criminalization of LGBT status or conduct as human rights issues â efforts which are stringently opposed by Arab and African voting blocs and the Russian Federation.
The Windsor line of cases reinforces that the United States is committed to achieving domestic progress, just as it challenges other nations to do the same. Windsorâs holding that the federal government may not deny federal benefits to gay spouses whose marriages the states have chosen to recognize, and its subsequent use by the courts to counter sexual orientation discrimination outside of the marriage context, create ready examples with which to counter repressive actions by countries that deny even the most basic human rights protections to LGBT individuals. President Obamaâs recent condemnation of Russian bans on gay rights advocacy, for example, carries more global weight when the United States is as engaged at home as it is abroad.
Moreover, anticipating that sexual orientation discrimination will become an increasing focus for the international human rights community, the success of future multilateral initiatives depends on the U.S. and likeminded states remaining in close alignment. Yet many of these states historically have outpaced the United States in domestic protections against sexual orientation discrimination. The domestic gains achieved through Windsor signal that these differences are winnowing, which in turn facilitates a continued unified multilateral LGBT strategy. Recent statements by Secretary of State John Kerry and Catherine Ashton, the European Unionâs High Representative for Foreign Affairs and Security Policy, expressing serious concern at the passage of Nigeriaâs Same Sex Marriage Prohibition Act demonstrate a notable consistency in messaging in this regard; both officials have criticized the discriminatory nature of the law and its restrictions on the freedoms of assembly, association, and expression, concluding that the law contravenes Nigeriaâs constitution and its international legal obligations.
Windsorâs chipping away at domestic sexual orientation discrimination also may further contribute to a more robust understanding of U.S. international human rights obligations, most notably the non-discrimination provisions contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR). In this vein, U.S. periodic reporting to the ICCPRâs Human Rights Committee, the body that oversees implementation of the treaty, is a useful mechanism for cataloguing change. For example, whereas prior reporting had acknowledged a gap in privacy protections under the Courtâs decision in Bowers v. Hardwick (upholding the constitutionality of a state sodomy law as applied only to private, consensual same sex conduct), the most recent U.S. report of December 30, 2011 cites to Lawrence v. Texas, which overturned Bowers, in affirming that the U.S. Constitution provides protection from unlawful and arbitrary interference with privacy. The report further details at length actions taken by all three branches of government to combat discrimination and protect the human rights of LGBT persons in the United States. On March 13-14, 2014, the United States will present its report for the Human Rights Committeeâs consideration. Because the report pre-dated Windsor, this will be the first opportunity to discuss the decision under ICCPR auspices. How the U.S. delegation addresses Windsor and the stream of cases that have followed will further underscore to the international community how these decisions contribute to the changing landscape of LGBT human rights and human rights advocacy.
A domestic sea change, Windsor also buttresses the U.S. LGBT human rights platform. As the United States has placed importance on leading by example, the Windsor opinion and its application over the past several months illustrate that a stateâs commitment to achieve greater protections for LGBT individuals is an achievable aim and can be employed broadly to encourage states to address domestic inequality and restrictions on human rights and fundamental freedoms on account of sexual orientation. While much work remains for the United States and its allies in the LGBT international human rights community, Windsor indicates that this will continue to be an area worth watching.
About the Author
Julie B. Martin, an ASIL member and ILM corresponding editor, is an attorney-adviser with the U.S. Department of State Office of the Legal Adviser. The views expressed in this Insight are solely those of the author and do not necessarily reflect those of the Department of State or the U.S. government.
 United States v. Windsor, 570 U.S. _, 133 S. Ct. 2675 (2013); see also Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
 Windsor, 133 S. Ct. at 2693.
 Id. at 2692-93.
 Id. at 2693-94.
 Id. at 2697, 2709-11, 2720.
 De Leon et al. v. Perry, No. SA-13-CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236 (W.D. Tex. Feb. 26, 2014) (stayed pending appeal); Bostic et al. v. Rainey, No. 2:13cv395, 2014 U.S. Dist. LEXIS 19110 (E.D. Va. Feb. 13, 2014) (stayed pending appeal); Bishop v. U.S. ex rel Holder, No. 04-CV-848-TCK-TLW, 2014 U.S. Dist. LEXIS 4374 (N.D. Okla. Jan. 14, 2014) (stayed pending appeal); Kitchen v. Herbert, No. 2:13-cv-217, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013), stay granted, Herbert v. Kitchen, 134 S. Ct. 893, 82 U.S.L.W. 3382, (U.S. Jan. 06, 2014).
 David S. Cohen and Dahlia Lithwick, Itâs Over: Gay Marriage Canât Lose in the Courts, Slate (Feb. 14, 2014), http://tinyurl.com/lxb9mpk; Garden State Equality v. Dow, 434 N.J. Super. 163, 82 A.3d 336 (N.J. Super. L. Sept. 27, 2013); Griego v. Oliver, 316 P.3d 865 (N.M. S.Ct. Dec. 19, 2013).
 Bourke v. Beshear, No. 3:13-CIV-750-H, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014); Obergefell v. Wymyslo, No. 1:13-cv-501, 2013 U.S. Dist. LEXIS 179550 (S.D. Ohio Dec. 23, 2013); Gray v. Orr, No. 13 C 8449, 2013 U.S. Dist. LEXIS 171473 (N.D. IL. Dec. 5, 2013); McGee v. Cole, No. 3:13-24068, 2014 U.S. Dist. LEXIS 10864 (S.D. W. Va. Jan. 29, 2014).
 SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) (jurors cannot be stricken on the basis of sexual orientation); Cozen OâConnor, P.C. v. Tobits, No. 11-0045, 2013 U.S. Dist. LEXIS 105507 (E.D. Pa. July 29, 2013) (ERISA definition of âspouseâ must include same-sex spouses recognized by the state of Illinois); In re Fonberg, 736 F.3d 901 (9th Cir. Nov. 25, 2013) (OPM distinction between same-sex marriages and civil unions constituted sexual orientation discrimination inconsistent with the District of Oregonâs Employment Dispute Resolution plan); D.M.T. v. T.M.H., 129 So.3d 320 (Fla. S. Ct. Nov. 7, 2013) (same-sex couples must be afforded the equivalent chance as a heterosexual couple to establish their parental intentions in using assisted reproductive technology to conceive a child).
 See, e.g., Hillary Rodham Clinton, Secây of State, Remarks in Recognition of International Human Rights (Dec. 6, 2011), http://www.state.gov/secretary/rm/2011/12/178368.htm (â[The U.S.] record on human rights for gay people is far from perfect. . . . So we, like all nations, have more work to do to protect human rights at home.â).
 Human Rights Council Res. Res. 17/19, Rep. of the Human Rights Council, 17th Sess., July 14, 2011, A/HRC/RES/17/19 (July 14, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf?OpenElement.
 Fact Sheet, Office of the Spokesperson, U.S. Depât of State, The Department of Stateâs Accomplishments Promoting the Human Rights of Lesbian, Gay, Bisexual and Transgender People (Dec. 6, 2011), http://www.state.gov/r/pa/prs/ps/2011/12/178341.htm [hereinafter Fact Sheet]; Press Release, Organization of American States, IACHR Creates Unit on the Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons (Nov. 3, 2011), http://www.oas.org/en/iachr/media_center/PReleases/2011/115.asp.
 Presidential Memorandum, International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual and Transgender Persons, (Dec. 6, 2011), http://www.whitehouse.gov/the-press-office/2011/12/06/presidential-memorandum-international-initiatives-advance-human-rights-l.
 See generally UN High Commâr for Human Rights, Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation and Gender Identity, Â¶Â¶ 40, 45, U.N. Doc. A/HRC/19/41 (Nov. 17, 2011), http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf [hereinafter UN High Commâr Rep.] (surveying discriminatory and criminal sanctions against LGBT individuals).
 HRC Res. 17/19, supra note 12.
 Cindy Boren, President Obama Has âNo Patienceâ for Russiaâs Anti-Gay Stance, Wash. Post (Aug. 7, 2013), http://www.washingtonpost.com/blogs/early-lead/wp/2013/08/07/president-obama-has-no-patience-for-russias-anti-gay-stance/.
 UN High Commâr Rep., supra note 15, Â¶Â¶ 7-8.
 John Kerry, Secây of State, Deep Concern with Nigeriaâs Enactment of the Same Sex Marriage Prohibition Act, Press Statement (Jan. 13, 2014), http://www.state.gov/secretary/remarks/2014/01/219587.htm; Catherine Ashton, EU High Rep. for Foreign Affairs and Security Policy, EU HR Ashton Concerned by Nigeriaâs Same Sex Marriage Prohibition Act, Press Statement (Jan. 15, 2014), http://www.eu-un.europa.eu/articles/en/article_14469_en.htm.
 International Covenant on Civil and Political Rights [ICCPR], Mar. 23, 1976, 999 U.N.T.S. 171; see also S. Rep. No. 102-23 (1992), reprinted in 31 I.L.M. 645 (1992). Upon ratification, the United States submitted the following understanding of its obligations under Articles 2 and 26 of the Convention: â[T]he Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against discrimination. The United States understands distinctions based upon race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status - as those terms are used in Article 2, paragraph 1 and Article 26 - to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective.â ICCPR, Declarations and Reservations, United Nations Treaty Collection, (Mar. 7, 2014, 5:06 EDT), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en#EndDec.
 Initial Report of the United States of America to the United Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights Â¶522 (Aug. 24, 1994), http://www.state.gov/documents/organization/133836.pdf.
 Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights Concerning the International Covenant on Civil and Political Rights Â¶321 (Dec. 30, 2011), http://www.state.gov/j/drl/rls/179781.htm.
 Id. Â¶Â¶ 76, 399-400 (housing discrimination), Â¶ 84 (employment discrimination), Â¶Â¶ 390-97 (marriage), Â¶ 398 (hospital visitation), Â¶ 401 (adoption), Â¶Â¶ 606-17 (efforts to combat discrimination on account of sexual orientation or gender identity).