Does the recent SCOTUS decision on the Defense Of Marriage Act (DOMA) have any implications on the unconstitutionality of Mortgage Interest deductions for peoples whose religions bar them from borrowing (or believe that their religion does)?

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 (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. [...]

  1. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–26.

It appears that some religious persons believe that their religion prohibits borrowing (or at least isn't encouraged).

In a recent survey of several seminary students, it was determined that 70 percent of those surveyed felt that borrowing was scripturally prohibited.

Windsor was denied equal protection because she chose to marry someone of the same sex, and the estate tax laws discriminated against same-sex marriages. A person who exercises their first amendment right to freely exercise their religion will be discriminated against because they will pay higher taxes than someone who chooses to borrow money to buy a house.

Does the DOMA decision support an argument that the Mortgage Interest deduction is unconstitutional? (Why?)

If not, why not?

  • I do not think this question is valid. The ruling said that liberty can not be denied not that they can not be taxed. Jun 27, 2013 at 13:42
  • 1
    I'm not a judicial expert, but my understanding is that ANY SC decision CAN have implications with other legislation, provided it is tested in court. (Ie, a decision doesn't directly affect other legislation, but can be used as precedent in other legislation court decisions)
    – user1530
    Jun 27, 2013 at 14:02
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    @Chad - being based on a seemingly incorrect legal theory is NOT a reason to declare the question invalid on SE.
    – user4012
    Jun 27, 2013 at 15:17

1 Answer 1


No the Mortgage interest deduction would not be unconstitutional. DOMA was the government restricting benefits to a distinct group and violating equal protection. The judicial precedent for equal protection for federal laws is somewhat fuzzy as there is not equal protection clause specifically written as part of the fifth amendment, and the specific clause is only in reference to states in the fourteenth amendment.

This is how the precedent has been set for federal equal protection under the fifth amendment:

By [the 14th amendment's] terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive.

In the case of a religious person not getting a mortgage, that decision is made by that person alone and the federal government is not forcing them to get one or denying them the deduction should they claim it with a valid mortgage because they also claim X belief. Windsor was actively denied a benefit given to others by the federal government, the hypothetical religious person is not denied anything by the government but by their own choice. Furthermore a person paying cash for a house may pay more tax, but they are paying less for the house so the are in effect paying "interest" to the government, while those who borrow pay interest to a bank.

This ruling is based on the states rights to define a marriage which is legal being in conflict with the definition in DOMA, the definition for DOMA was found unconstitutional based on equal protection under the fifth amendment.

When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.


For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.


DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question 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.


The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.


  • "[Not getting a] mortgage, that decision is made by that person alone and the federal government is not forcing them to get one or denying them the deduction should they claim it with a valid mortgage because they also claim X belief [...] Windsor was actively denied a benefit given to others by the federal government, the hypothetical religious person is not denied anything by the government but by their own choice." I am not sure I understand your use of force, actively deny, and choice. Couldn't Windsor have choosen to marry a man and had a valid marriage for the purposes of
    – user1873
    Jun 27, 2013 at 14:09
  • @user1873 I think that will veer the debate way off course into "is sexual orientation a choice" territory.
    – user1530
    Jun 27, 2013 at 14:13
  • Additionally, you should quote the related sections of the DOMA decision that support this argument. As it stands, this is purely opinion.
    – user1873
    Jun 27, 2013 at 14:38
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    @DA. - not really. You can marry someone without being sexually attracted to them for financial reasons, while being fully straight. Gold diggers been doing it for centuries and keep doing it. Then again, I find BOTH sides of this argument to be illigical idiots from the ground up, by somehow blythely assuming as axiom that the government owes ANYONE (straight or gay) different treatment based on nothing more than an agent of government having previously given them a paper statement that these two are now in a special relationship.
    – user4012
    Jun 27, 2013 at 15:19
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    @DVK, and now you're proving my earlier point. This is going to turn into a debate as to what is a choice vs. not. So, let's do it! :) The legal system does not need to account for religious dogma and laws. That's a right you have to pick and choose whatever religious rules you'd like. But that's outside of our legal system, and it's an individual choice you make. Yes, we can compare religion to sexual orientation, but there's no strong legal connection. It's merely a mental exercise and, personally, I don't think it will lead to any agreed-upon conclusion.
    – user1530
    Jun 27, 2013 at 15:26

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