Notizie, Sentenze, Articoli - Avvocato Cassazionista Trapani


La Corte suprema americana cancella una legge federale che limitava la definizione di
La Corte suprema americana cancella una legge federale che limitava la definizione di "matrimonio". Ora tutte le coppie legalmente sposate avranno gli stessi diritti.
(Slip Opinion)
No. 12–307. Argued March 27, 2013—Decided June 26, 2013
The State of New York recognizes the marriage of New York residents
Edith Windsor and Thea Spyer, who wed in Ontario, 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 surviv -ing spouses, but was barred from doing so by §3 of the federal Defense of Marriage Act (DOMA), 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 $363,053 in
estate taxes and sought a refund, which the Internal Revenue Service
denied. Windsor brought this refund suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the
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 re
sponse, the Bipartisan Legal Adviso
ry Group (BLAG) of the House of
Representatives voted to intervene
in the litigation to defend §3's
constitutionality. The District Co
urt permitted the intervention. On
the merits, the court ruled against
the United States, finding §3 un
constitutional and ordering the Treasury to refund Windsor's tax
with interest. The Second Circuit
affirmed. The United States has
not complied with the judgment.
This Court has jurisdiction to consider the merits of the case.
This case clearly presented a co
ncrete disagreement between oppos
ing parties that was suitable for ju
dicial resolution in the District
Court, but the Executive'
s decision not to defend §3's constitutionali
ty in court while continuing to de
ny refunds and assess deficiencies
introduces a complication. Give
n the Government's concession,
contends, once the District Court ordered the refund, the case
should have ended and the appeal
been dismissed. But this argu
ment elides the distinction between
Article III's jurisdictional re
quirements and the prudential limi
ts on its exercise, which are “es
sentially matters of judi
cial self-governance.”
, 422
S. 490, 500. Here, the United States retains a stake sufficient to
support Article III jurisdiction on a
ppeal and in this Court. The re
fund it was ordered to pay Windsor
is “a real and immediate econom
ic injury,”
Freedom From Religion Foundation, Inc.
, 551 U. S.
587, 599, even if the Executive disagrees with §3 of DOMA. Wind
sor's ongoing claim for funds that the United States refuses to pay
thus establishes a controversy sufficient for Article III jurisdiction.
, 462 U. S. 919.
Prudential considerations, howeve
r, demand that there be “con
crete adverseness which sharpens th
e presentation of issues upon
which the court so largely depends fo
r illumination of difficult consti
tutional questions.”
, 369 U. S. 186, 204. Unlike Article
III requirements—which mu
st be satisfied by the parties before judi
cial consideration is appropriate—prudential factors that counsel
against hearing this case are su
bject to “countervailing considera
tions [that] may outweigh the conc
erns underlying the usual reluc
tance to exert judicial power.”
at 500–501. One such
consideration is the extent to whic
h adversarial presentation of the
issues is ensured by the participation of
amici curiae
prepared to de
fend with vigor the legislative act's constitutionality. See
at 940. Here, BLAG's substantial adversarial argument for
§3's constitutionality satisfies prudential concerns that otherwise
might counsel against hearing an appeal from a decision with which
the principal parties agree. This co
nclusion does not mean that it is
appropriate for the Executive as a ro
utine exercise to challenge stat
utes in court instead of making
the case to Congress for amendment
or repeal. But this case is not routine, and BLAG's capable defense
ensures that the prudenti
al issues do not cloud the merits question,
which is of immediate importance to the Federal Government and to
hundreds of thousands of persons. Pp. 5–13.
DOMA is unconstitutional as a de
privation of the equal liberty of
persons that is protected by th
e Fifth Amendment. Pp. 13–26.
By history and tradition the
definition and regulation of mar
riage has been treated as being with
in the authority and realm of the
separate States. Congress has enacted discrete statutes to regulate
the meaning of marriage in order to further federal policy, but
DOMA, with a directive applicable to over 1,000 federal statues and
Cite as: 570 U. S. ____ (2013)
the whole realm of federal regulations, has a far greater reach. Its
operation is also directed to a cla
ss of persons that the laws of New
York, and of 11 other States, have so
ught to protect. Assessing the
validity of that intervention requir
es discussing the historical and
traditional extent of state powe
r and authority over marriage.
Subject to certain constitutional guarantees, see
, e.g., Loving
, 388 U. S. 1, “regulation of domestic relations” is “an area
that has long been regarded as a
virtually exclusive province of the
, 419 U. S. 393, 404. The significance of state
responsibilities for the definition
and regulation of marriage dates to
the Nation's beginning; for “when the Constitution was adopted the
common understanding was that the domestic relations of husband
and wife and parent and child were matters reserved to the States,”
Ohio ex rel. Popovici
, 280 U. S. 379, 383–384. Marriage laws
may vary from State to State, but they are consistent within each
DOMA rejects this long-established
precept. The State's decision
to give this class of persons the right to marry conferred upon them a
dignity and status of immense import. But the Federal Government
uses the state-defined class for th
e opposite purpose—to impose re
strictions and disabilities. The qu
estion is whether the resulting in
jury and indignity is a deprivation of an essential part of the liberty
protected by the Fifth Amendment,
since what New York treats as
alike the federal law deems unlike by
a law designed to injure the
same class the State seeks to prot
ect. New York's actions were a
proper exercise of its sovereign au
thority. They reflect both the
community's considered perspective on
the historical roots of the in
stitution of marriage and its evolvi
ng understanding of the meaning
of equality. Pp. 13–20.
By seeking to injure the very
class New York seeks to protect,
DOMA violates basic due process and
equal protection principles ap
plicable to the Federal Government.
The Constitution's guarantee of
equality “must at the very least mean that a bare congressional de
sire to harm a politically unpopular group cannot” justify disparate
treatment of that group.
Department of Agriculture
, 413
S. 528, 534–535. DOMA cannot survive under these principles.
Its unusual deviation from the tradit
ion of recognizing and accepting
state definitions of marriage operates
to deprive same-sex couples of
the benefits and responsibilities that
come with federal recognition of
their marriages. This is strong ev
idence of a law having the purpose
and effect of disapproval of a clas
s recognized and protected by state
law. DOMA's avowed purpose and pr
actical effect are 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.
DOMA's history of enactment and its own text demonstrate that
interference with the equal dignit
y of same-sex marriages, conferred
by the States in the exercise of th
eir sovereign power, was more than
an incidental effect of the federal st
atute. It was its essence. BLAG's
arguments are just as candid about the congressional purpose.
DOMA's operation in practice confirms this purpose. It frustrates
New York's objective of eliminatin
g inequality by writing inequality
into the entire United States Code.
DOMA's principal effect is to iden
tify and make unequal a subset of
state-sanctioned marriages. It co
ntrives to deprive some couples
married under the laws of their Stat
e, but not others, of both rights
and responsibilities, creating tw
o contradictory marriage regimes
within the same State. It also forces same-sex couples to live as mar
ried for the purpose of state law but unmarried for the purpose of
federal law, thus diminishing the st
ability and predictability of basic
personal relations the State has fo
und it proper to acknowledge and
protect. Pp. 20–26.
699 F. 3d 169, affirmed.
J., delivered the opinion of
the Court, in which G
, S
and K
JJ., joined.
C. J., filed a
dissenting opinion. S
J., filed a dissenting opinion, in which
J., joined, and in which R
C. J., joined as to Part I.
J., filed a dissenting opinion, in which T
J., joined as to
Parts II and III.
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543,
of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
No. 12–307
[June 26, 2013]
delivered the opinion of the Court.
Two women then resident in New York were married
in a lawful ceremony in Ontario, Canada, in 2007. Edith
Windsor and Thea Spyer returned to their home in New
York City. When Spyer died in 2009, she left her entire
estate to Windsor. Windsor sought to claim the estate tax
exemption for surviving spouses. She was barred from
doing so, however, by a federal law, the Defense of Mar-
riage Act, which excludes a same-sex partner from the
definition of “spouse” as that term is used in federal stat-
utes. Windsor paid the taxes but filed suit to challenge
the constitutionality of this provision. The United States
District Court and the Court of Appeals ruled that this
portion of the statute is unconstitutional and ordered the
United States to pay Windsor a refund. This Court granted
certiorari and now affirms the judgment in Windsor's
In 1996, as some States were beginning to consider the
concept of same-sex marriage, see,
, 74
Opinion of the Court
Haw. 530, 852 P. 2d 44 (1993), and before any State had
acted to permit it, Congress
enacted the Defense of Mar
riage Act (DOMA), 110 Stat. 2419. DOMA contains two
operative sections: Section 2, which has not been chal
lenged here, allows States to refuse to recognize same-sex
marriages performed under the laws of other States. See
28 U. S. C. §1738C
Section 3 is at issue here. It amends the Dictionary Act
in Title 1, §7, of the United States Code to provide a fed-
eral definition of “marriage” and “spouse.” Section 3 of
DOMA provides as follows:
“In determining the meaning of any Act of Con
gress, or of any ruling, regulation, or interpretation of
the various administrative bu
reaus and agencies of the
United States, the word ‘marriage' means only a
legal union between one man and one woman as hus
band and wife, and the word ‘spouse' refers only to a
person of the opposite sex who is a husband or a wife.”
1 U. S. C. §7.
The definitional provision does not by its terms forbid
States from enacting laws pe
rmitting same-sex marriages
or civil unions or providing st
ate benefits to residents in
that status. The enactment's comprehensive definition of
marriage for purposes of all federal statutes and other
regulations or directives cove
red by its terms, however,
does control over 1,000 federal laws in which marital or
spousal status is addressed as a matter of federal law. See
GAO, D. Shah, Defense of Marriage Act: Update to Prior
Report 1 (GAO–04–353R, 2004).
Edith Windsor and Thea Spyer met in New York City in
1963 and began a long-term relationship. Windsor and
Spyer registered as domestic partners when New York
City gave that right to same-sex couples in 1993. Con
cerned about Spyer's health, the couple made the 2007 trip
to Canada for their marriage, but they continued to reside
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
in New York City. The State of New York deems their
Ontario marriage to be a valid one. See 699 F. 3d 169,
177–178 (CA2 2012).
Spyer died in February 2009,
and left her entire estate
to Windsor. Because DOMA de
nies federal recognition to
same-sex spouses, Windsor did not qualify for the marital
exemption from the federal estate tax, which excludes
from taxation “any interest in property which passes or
has passed from the decedent to his surviving spouse.” 26
S. C. §2056(a). Windsor paid $363,053 in estate taxes
and sought a refund. The Internal Revenue Service de
nied the refund, concluding that, under DOMA, Windsor
was not a “surviving spouse.” Windsor commenced
this refund suit in the United States District Court for
the Southern District of New York. She contended
that DOMA violates the guar
antee of equal protection,
as applied to the Federal Government through the Fifth
While the tax refund suit was pending, the Attorney
General of the United States notified the Speaker of the
House of Representatives, pursuant to 28 U. S. C. §530D,
that the Department of Justice
would no longer defend the
constitutionality of DOMA's §3. Noting that “the Depart
ment has previously defended DOMA against . . . chal
lenges involving legally married same-sex couples,” App.
184, the Attorney General informed Congress that “the
President has concluded that given a number of factors,
including a documented history of discrimination, classifi
cations based on sexual orientation should be subject to
a heightened standard of scrutiny.”
at 191. The De
partment of Justice has submitted many §530D letters
over the years refusing to defend laws it deems unconsti
tutional, when, for instance, a federal court has rejected
the Government's defense of a statute and has issued a
judgment against it. This case is unusual, however, be
cause the §530D letter was not preceded by an adverse
Opinion of the Court
judgment. The letter instead reflected the Executive's
own conclusion, relying on a definition still being debated
and considered in the courts, that heightened equal pro
tection scrutiny should apply to laws that classify on the
basis of sexual orientation.
Although “the President . . . instructed the Department
not to defend the statute in
,” he also decided
“that Section 3 will continue to be enforced by the Execu
tive Branch” and that the Un
ited States had an “interest
in providing Congress a full and
fair opportunity to partic
ipate in the litigation of those cases.”
at 191–193. The
stated rationale for this d
ual-track procedure (determina
tion of unconstitutionality co
upled with ongoing enforce
ment) was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.”
at 192.
In response to the notice
from the Attorney General,
the Bipartisan Legal Advisory Group (BLAG) of the House
of Representatives voted to intervene in the litigation to
defend the constitutionality of §3 of DOMA. The Depart
ment of Justice did not oppo
se limited intervention by
BLAG. The District Court denied BLAG's motion to enter
the suit as of right, on the rationale that the United States
already was represented by the Department of Justice.
The District Court, however, did grant intervention by
BLAG as an interested party. See Fed. Rule Civ. Proc.
On the merits of the tax refund suit, the District Court
ruled against the United States. It held that §3 of DOMA
is unconstitutional and ordered the Treasury to refund the
tax with interest. Both the Justice Department and BLAG
filed notices of appeal, and the Solicitor General filed a
petition for certiorari before
judgment. Before this Court
acted on the petition, the Court of Appeals for the Second
Circuit affirmed the District Court's judgment. It applied
heightened scrutiny to classifications based on sexual
orientation, as both the Department and Windsor had
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
urged. The United States has not complied with the judg
ment. Windsor has not received her refund, and the Ex-
ecutive Branch continues to enforce §3 of DOMA.
In granting certiorari on the question of the constitu
tionality of §3 of DOMA, the Court requested argument
on two additional questions: whether the United States'
agreement with Windsor's legal position precludes further
review and whether BLAG has standing to appeal the
case. All parties agree that the Court has jurisdiction to
decide this case; and, with the case in that framework, the
Court appointed Professor Vicki Jackson as
amicus curiae
to argue the position that the Court lacks jurisdiction to
hear the dispute. 568 U. S. ___ (2012). She has ably
discharged her duties.
In an unrelated case, the United States Court of Ap
peals for the First Circuit has also held §3 of DOMA to be
unconstitutional. A petition for certiorari has been filed in
that case. Pet. for Cert. in
Bipartisan Legal Advisory
, O. T. 2012, No. 12–13.
It is appropriate to begin by addressing whether either
the Government or BLAG, or both of them, were entitled
to appeal to the Court of A
ppeals and later to seek certio
rari and appear as parties here.
There is no dispute that when this case was in the
District Court it presented
a concrete disagreement be
tween opposing parties, a dispute suitable for judicial
resolution. “[A] taxpayer has standing to challenge the
collection of a specific tax assessment as unconstitutional;
being forced to pay such a tax
causes a real and immediate
economic injury to the individual taxpayer.”
dom From Religion Foundation, Inc.
, 551 U. S. 587, 599
(2007) (plurality opinion) (emphasis deleted). Windsor
suffered a redressable injury
when she was required to
pay estate taxes from which, in her view, she was exempt
Opinion of the Court
but for the alleged invalidity of §3 of DOMA.
The decision of the Executive not to defend the constitu
tionality of §3 in court while continuing to deny refunds
and to assess deficiencies does introduce a complication.
Even though the Executive's current position was an
nounced before the District
Court entered its judgment,
the Government's agreement with Windsor's position would
not have deprived the District Court of jurisdiction to
entertain and resolve the refund suit; for her injury (fail
ure to obtain a refund allegedly required by law) was
concrete, persisting, and unredressed. The Government's
position—agreeing with Windsor's legal contention but
refusing to give it effect—meant that there was a justicia
ble controversy between the parties, despite what the
claimant would find to be an inconsistency in that stance.
Windsor, the Government, BLAG, and the
to agree upon that point. The disagreement is over the
standing of the parties, or aspiring parties, to take an
appeal in the Court of Appeals and to appear as parties in
further proceedings in this Court.
position is that, given the Government's
concession that §3 is unconstitutional, once the District
Court ordered the refund the case should have ended;
and the
argues the Court of Appeals should have
dismissed the appeal. The
submits that once
the President agreed with Windsor's legal position and the
District Court issued its judg
ment, the parties were no
longer adverse. From this standpoint the United States
was a prevailing party below, just as Windsor was. Ac
cordingly, the
reasons, it is inappropriate for this
Court to grant certiorari and proceed to rule on the merits;
for the United States seeks no redress from the judgment
entered against it.
This position, however, elides the distinction between
two principles: the jurisdicti
onal requirements of Article
III and the prudential limits on its exercise. See
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
, 422 U. S. 490, 498 (1975). The latter are “essen
tially matters of judicial self-governance.”
, at 500.
The Court has kept these two strands separate: “Article
III standing, which enforces the Constitution's case-or
controversy requirement, see
Defenders of Wildlife,
504 U. S. 555, 559–562 (1992); and prudential standing,
which embodies ‘judicially sel
f-imposed limits on the exer-
cise of federal jurisdiction,'
,] 468 U. S.
[737,] 751 [(1984)].”
Elk Grove Unified School Dist.
, 542 U. S. 1, 11–12 (2004).
The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in
fact'—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) ‘actual or
imminent, not “conjectural or hypothetical.”
' Second,
there must be a causal connection between the injury
and the conduct complained of—the injury has to be
‘fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independ
ent action of some third party not before the court.'
Third, it must be ‘likely,' as opposed to merely ‘specu
lative,' that the injury w
ill be ‘redressed by a favor-
able decision.'
at 560–561 (footnote and
citations omitted).
Rules of prudential standing, by contrast, are more flex-
ible “rule[s] . . . of federal appellate practice,”
Guaranty Nat. Bank
, 445 U. S. 326, 333 (1980),
designed to protect the courts from “decid[ing] abstract
questions of wide public significance even [when] other
governmental institutions ma
y be more competent to ad-
dress the questions and even though judicial intervention
may be unnecessary to protect individual rights.”
at 500.
In this case the United States retains a stake sufficient
to support Article III jurisdiction on appeal and in pro
Opinion of the Court
ceedings before this Court. The judgment in question
orders the United States to pay Windsor the refund she
seeks. An order directing the
Treasury to pay money is “a
real and immediate economic injury,”
, 551 U. S.
599, indeed as real and immediate as an order directing
an individual to pay a tax. That the Executive may wel
come this order to pay the refund if it is accompanied by
the constitutional ruling it
wants does not eliminate the
injury to the national Treasury if payment is made, or to
the taxpayer if it is not. The judgment orders the United
States to pay money that it
would not disburse but for the
court's order. The Government of the United States has a
valid legal argument that it
is injured even if the Execu
tive disagrees with §3 of DOMA, which results in Wind
sor's liability for the tax.
Windsor's ongoing claim for
funds that the United States refuses to pay thus estab
lishes a controversy sufficient for Article III jurisdiction.
It would be a different case if the Executive had taken
the further step of paying Windsor the refund to which she
was entitled under the District Court's ruling.
This Court confronted a comparable case in
, 462 U. S. 919 (1983). A statute by its terms
allowed one House of Congress to order the Immigration
and Naturalization Service (INS) to deport the respondent
Chadha. There, as here, the Executive determined that
the statute was unconstitutional, and “the INS presented
the Executive's views on the constitutionality of the House
action to the Court of Appeals.”
at 930. The INS,
however, continued to abide by the statute, and “the INS
brief to the Court of Appeals did not alter the agency's
decision to comply with the House action ordering depor
tation of Chadha.”
This Court held “that the INS
was sufficiently aggrieved by the Court of Appeals deci
sion prohibiting it from taki
ng action it would otherwise
regardless of whether the agency welcomed
the judgment. The necessity of a “case or controversy” to
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
satisfy Article III was defined
as a requirement that the
Court's “
‘decision will have real meaning: if we rule for
Chadha, he will not be deported; if we uphold [the stat
ute], the INS will execute its order and deport him.'
at 939–940 (quoting
, 634 F. 2d 408, 419
(CA9 1980)). This conclusion was not dictum. It was a
necessary predicate to the Court's holding that “prior to
Congress' intervention, there was adequate Art. III ad
verseness.” 462 U. S.
at 939. The holdings of cases are
instructive, and the words of
make clear its hold
ing that the refusal of the Executive to provide the relief
sought suffices to preserve a justiciable dispute as re
quired by Article III. In short, even where “the Govern
ment largely agree[s] with the opposing party on the
merits of the controversy,” there is sufficient adverseness
and an “adequate basis for jurisdiction in the fact that
the Government intended to enforce the challenged law
against that party.”
, at 940, n. 12.
It is true that “[a] party who receives all that he has
sought generally is not aggrieved by the judgment afford
ing the relief and cannot appeal from it.”
333, see also
, 563 U. S. ___, ___ (2011)
(slip op., at 8) (“As a matter of practice and prudence, we
have generally declined to consider cases at the request of
a prevailing party, even when the Constitution allowed us
to do so”). But this rule “does not have its source in the
jurisdictional limitations of Art. III. In an appropriate
case, appeal may be permitted
. . . at the behest of the
party who has prevailed on the merits, so long as that
party retains a stake in the appeal satisfying the require
ments of Art. III.”
at 333–334.
While these principles suffice to show that this case
presents a justiciable controversy under Article III, the
prudential problems inherent
in the Executive's unusual
position require some further discussion. The Executive's
agreement with Windsor's legal argument raises the risk
Opinion of the Court
that instead of a “
‘real, earnest and vital controversy,
' ”
the Court faces a “friendly, non-adversary, proceeding . . .
[in which] ‘a party beaten in the legislature [seeks to]
transfer to the courts an inquiry as to the constitutionality
of the legislative act.'
, 297 U. S.
288, 346 (1936) (Brandeis, J., concurring) (quoting
& Grand Trunk R. Co.
, 143 U. S. 339,
345 (1892)). Even when Article III permits the exercise
of federal jurisdiction, prudential considerations demand
that the Court insist upon “that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult consti
tutional questions.”
, 369 U. S. 186, 204
There are, of course, reasons to hear a case and issue a
ruling even when one party is reluctant to prevail in its
position. Unlike Article III requirements—which must
be satisfied by the parties befo
re judicial consideration is
appropriate—the relevant prudential factors that counsel
against hearing this case are subject to “countervailing
considerations [that] may outweigh the concerns underly
ing the usual reluctance to
exert judicial power.”
422 U. S., at 500–501. One consideration is the extent to
which adversarial presentation of the issues is assured by
the participation of
amici curiae
prepared to defend with
vigor the constitutionality of the legislative act. With
respect to this prudential aspect of standing as well, the
Court encountered a similar situation. It noted
that “there may be prudenti
al, as opposed to Art. III,
concerns about sanctioning the adjudication of [this case]
in the absence of any participant supporting the validity of
[the statute]. The Court of Appeals properly dispelled any
such concerns by inviting and accepting briefs from both
Houses of Congress.” 462 U. S., at 940.
was not
an anomaly in this respect. The Court adopts the practice
of entertaining arguments made by an
when the
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
Solicitor General confesses e
rror with respect to a judg
ment below, even if the confession is in effect an admission
that an Act of Congress is unconstitutional. See,
United States
, 530 U. S. 428 (2000).
In the case now before the Court the attorneys for BLAG
present a substantial argument for the constitutionality
of §3 of DOMA. BLAG's shar
p adversarial presentation of
the issues satisfies the prudential concerns that otherwise
might counsel against hearing an appeal from a decision
with which the principal parties agree. Were this Court
to hold that prudential rules require it to dismiss the case,
and, in consequence, that the Court of Appeals erred in
failing to dismiss it as well, extensive litigation would
ensue. The district courts in
94 districts throughout the
Nation would be without preced
ential guidance not only in
tax refund suits but also in cases involving the whole of
DOMA's sweep involving over 1,000 federal statutes and a
myriad of federal regulations. For instance, the opinion of
the Court of Appeals for the First Circuit, addressing the
validity of DOMA in a case involving regulations of the
Department of Health and Human Services, likely would
be vacated with instructions to dismiss, its ruling and
guidance also then erased. See
States Dept. of Health and Human Servs.
, 682 F. 3d 1
(CA1 2012). Rights and privileges of hundreds of thou
sands of persons would be adversely affected, pending a
case in which all prudential concerns about justiciability
are absent. That numerical prediction may not be certain,
but it is certain that the cost in judicial resources and
expense of litigation for all persons adversely affected
would be immense. True,
the very extent of DOMA's
mandate means that at some point a case likely would
arise without the prudential concerns raised here; but the
costs, uncertainties, and alleged harm and injuries likely
would continue for a time measured in years before the
issue is resolved. In these unusual and urgent circum
Opinion of the Court
stances, the very term “prudential” counsels that it is a
proper exercise of the Court's responsibility to take juris
diction. For these reasons, the prudential and Article III
requirements are met here; and, as a consequence, the
Court need not decide whether BLAG would have stand
ing to challenge the District Court's ruling and its affir
mance in the Court of Appeals on BLAG's own authority.
The Court's conclusion that this petition may be heard
on the merits does not imply that no difficulties would
ensue if this were a common practice in ordinary cases.
The Executive's failure to defend the constitutionality of
an Act of Congress based on a constitutional theory not yet
established in judicial decisions has created a procedural
dilemma. On the one hand, as noted, the Government's
agreement with Windsor raises questions about the pro
priety of entertaining a suit in which it seeks affirmance of
an order invalidating a federal law and ordering the United
States to pay money. On the other hand, if the Execu-
tive's agreement with a plaintiff that a law is unconsti-
tutional is enough to preclude judicial review, then the
Supreme Court's primary role in determining the constitu
tionality of a law that has inflicted real injury on a plain
tiff who has brought a justiciable legal claim would
become only secondary to th
e President's. This would
undermine the clear dictate of the separation-of-powers
principle that “when an Act of Congress is alleged to con
flict with the Constitution, ‘[i]t is emphatically the prov
ince and duty of the judicial department to say what the
law is.'
, 566 U. S. ___, ___ (2012)
(slip op., at 7) (quoting
, 1 Cranch 137,
177 (1803)). Similarly, with respect to the legislative
power, when Congress has passed a statute and a Presi
dent has signed it, it poses gr
ave challenges to the separa
tion of powers for the Executiv
e at a particular moment to
be able to nullify Congress' enactment solely on its own
initiative and without any determination from the Court.
Cite as: 570 U. S. ____ (2013)
Opinion of the Court
The Court's jurisdictional holding, it must be under
scored, does not mean the arguments for dismissing this
dispute on prudential grounds lack substance. Yet the
difficulty the Executive faces should be acknowledged.
When the Executive makes a principled determination
that a statute is unconstitutional, it faces a difficult
choice. Still, there is no suggestion here that it is appro
priate for the Executive as a matter of course to challenge
statutes in the judicial forum rather than making the case
to Congress for their amendmen
t or repeal. The integrity
of the political process would be at risk if difficult consti-
tutional issues were simply
referred to the Court as a
routine exercise. But this case is not routine. And the
capable defense of the law by BLAG ensures that these
prudential issues do not cloud the merits question, which
is one of immediate importance to the Federal Govern
ment and to hundreds of thousands of persons. These cir-
cumstances support the Court's decision to proceed to the
When at first Windsor and Spyer longed to marry, nei
ther New York nor any other State granted them that
right. After waiting some ye
ars, in 2007 they traveled to
Ontario to be married there. It seems fair to conclude
that, until recent years, many citizens had not even con
sidered the possibility that two persons of the same sex
might aspire to occupy the same status and dignity as that
of a man and woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought
of by most people as essential to the very definition of that
term and to its role and function throughout the history of
civilization. That belief, fo
r many who long have held it,
became even more urgent, more cherished when chal
lenged. For others, however, came the beginnings of a
new perspective, a new insight.
Accordingly some States
Opinion of the Court
concluded that same-sex marriage ought to be given
recognition and validity in the law for those same-sex
couples who wish to define themselves by their commit
ment to each other. The limitation of lawful marriage
to heterosexual couples, wh
ich for centuries had been
deemed both necessary and fundamental, came to be
seen in New York and certain other States as an unjust
Slowly at first and then in rapid course, the laws of
New York came to acknowledge the urgency of this issue for
same-sex couples who wanted to affirm their commitment
to one another before their children, their family, their
friends, and their community. And so New York recog
nized same-sex marriages performed elsewhere; and then
it later amended its own marriage laws to permit same
sex marriage. New York, in common with, as of this writ
ing, 11 other States and the District of Columbia, decided
that same-sex couples should have the right to marry and
so live with pride in themselves and their union and in a
status of equality with all other married persons. After a
statewide deliberative process that enabled its citizens to
discuss and weigh arguments for and against same-
sex marriage, New York acted to enlarge the definition of
marriage to correct what its citizens and elected representatives perceived to be an
injustice that they had not earlier known or understood. See Marriage Equality Act,
2011 N. Y. Laws 749 (codified at N. Y. Dom. Rel. Law Ann.
§§10–a, 10–b, 13 (West 2013)).
Against this background of lawful same-sex marriage
in some States, the design, purpose, and effect of DOMA
should be considered as the beginning point in deciding
whether it is valid under the Constitution. By history and
tradition the definition and regulation of marriage, as will
be discussed in more detail, has been treated as being
within the authority and realm of the separate States. Yet
it is further established that Congress, in enacting dis
Avv. Antonino Sugamele

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