The Supreme Court has been petitioned to review another case challenging the constitutionality of the Defense of Marriage Act.
On Monday, lawyers for 83-year-old Edith “Edie” Windsor filed the petition with the hope that the high court will consider Windsor’s case regarding the federal estate tax and bypass the Second Circuit Court of Appeals.
The petition comes on the heels of a win for Windsor in New York District Court in June, when a judge ruled that Section 3 of DOMA unconstitutionally discriminates against same-sex couples.
The American Civil Liberties Union, the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic joined in filing the petition.
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 ACLU, 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. They were first engaged in 1967. Nevertheless, Windsor’s lawyers say the government still views them as legal strangers.
“With Edie’s case and the two others, the high court has before it striking illustrations of the many different harms that DOMA inflicts on many thousands of married same-sex couples all across the country,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, in a statement. “Edie and Thea got married after making a life-long commitment to each other, and it’s just wrong for the government to pretend that they were legal strangers.”
Windsor’s lawyer, Roberta Kaplan, points out that Windsor suffers from a heart condition. She also cites Windsor’s advanced years among the reasons the Supreme Court should take up her case.
“The constitutional injury inflicted on Edie should be remedied within her lifetime,” said Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, in a statement.
Windsor’s petition comes after three other cases were petitioned in late June and early July by the Justice Department and the House Bipartisan Legal Advisory Group (BLAG), controlled by House Republican leadership, regarding DOMA’s constitutionality, albeit for different reasons. The Obama administration instructed the Justice Department to stop enforcing DOMA in February 2011 declaring it unconstitutional. As a result, the BLAG has sought to defend DOMA with the hope that it will be found constitutional by the courts.
Regardless of the whether the Supreme Court decides to consider Windsor’s case, oral arguments are scheduled to begin in the Second Circuit Court of Appeals in September.
READ the petition here: WindsorPetition.pdf