DOMA Challenge Goes to Federal Appeals Court in New York

The U.S. Court of Appeals for the 2nd Circuit heard the latest arguments against the Defense of Marriage Act yesterday as lesbian widow Edith Windsor’s suit against the 1996 law reached the federal court.

Windsor-RMA.jpgAt 83-years-old, Windsor has become the most visible face in the legal battle against Section 3 of DOMA, which prohibits federal recognition of same-sex marriages.

Windsor has been challenging DOMA since 2009, following the death of her wife, Thea Spyer. Windsor is suing to recoup about $363,000, federal estate tax she was forced to pay on her inheritance from Spyer. The federal government does not tax inheritances that pass from one spouse to the other, but because of DOMA the federal government has refused to recognize Windsor and Spyer’s marriage. According to the American Civil Liberties Union, which has been assisting Windsor with the case, payment of the federal estate tax is one of the most damaging impacts of DOMA.

Living most of their lives in New York City’s Greenwich Village, Windsor and Spyer married in Canada in May 2007, 50 years into their relationship. Nevertheless, as Windsor’s lawyers explain, the federal government still views them as legal strangers.

Windsor’s case reached the 2nd Circuit Appeals Court after a federal judge sided with Windsor in June, ruling that the government must refund the more than $363,000 in taxes paid by Windsor. Windsor’s attorneys have argued that DOMA violated the equal — protection clause of the 14th Amendment.

The Bipartisan Legal Advisory Group (BLAG), which is controlled by House Republican leadership and has been defending the constitutionality of DOMA since the Obama administration stopped doing so in February 2011, appealed the ruling.

Speaking to reporters outside the Appeals Court yesterday, Windsor said DOMA was blatant in its discrimination against gay people.

“Not only is it illegal, as my lawyers argued today, but it refutes, it really challenges the basic principles on which this country was founded: fairness and equality,” Windsor said, according to The Guardian.

Although the case will continue to be heard in the 2nd Circuit U.S. Court of Appeals in the coming months, it is also one of four DOMA challenges that have been petitioned to the U.S. Supreme Court. Windsor’s lawyers argue that because of their client’s age and health conditions, the high court should take up the case before a ruling by the appeals court.

“The constitutional injury inflicted on Edie should be remedied within her lifetime,” said Windsor’s lawyer, Roberta Kaplan, in July.

According to Brian Moulton, legal director for the Human Rights Campaign, it would not be the first time the Supreme Court has taken a case before an appeals court has issued a ruling.

“It’s not unheard of, but it’s certainly not the usual practice of the court in most cases,” Moulton told Metro Weekly. “It makes things a little more interesting.”

The Windsor case was the only DOMA challenge on the justices’ conference calendar for Sept. 25. Although it was not announced earlier this week whether the court will take up the challenge this term, the Supreme Court will issue on Monday, Oct. 1, a list of all of the cases they are not considering.

Some predict the Supreme Court will wait to consider all four DOMA cases together along with the challenge to California’s Proposition 8, which amended the state’s Constitution to ban same-sex marriage after granting that right to gay couples. If the Supreme Court does decide to wait, an announcement from the court on which marriage-equality cases they will hear this term may not come until well into the fall.

[Photo: Edith Windsor]

[Editor’s note: As originally posted, this entry misidentified the U.S. Court of Appeals for the 2nd Circuit as the New York Court of Appeals.

Justin Snow is Metro Weekly's political editor and White House correspondent. He can be reached at jsnow@metroweekly.com.

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