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Another Federal Court: DOMA unconstitutional
by Lisa Keen, Keen News Service

For the second time in a week, a federal court has declared the core section of the Defense of Marriage Act ( DOMA ) to be unconstitutional.

Judge Barbara Jones of the U.S. District Court for Southern New York, which includes Manhattan, issued a ruling Wednesday ( June 6 ) , saying DOMA violates the constitution's guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax that heterosexual spouses are exempt from.

On May 31, the First Circuit U.S. Court of Appeals, using a "a closer than usual" rational basis review, also struck down Section 3 of DOMA as a violation of equal protection. That case is now headed for the U.S. Supreme Court.

The June 6 decision came in Windsor v. U.S., a case brought by the ACLU on behalf of Edie Windsor. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples.

The ACLU filed suit, arguing that DOMA violates the equal protection rights of gay people whose spouses die. It asked the court to refund to Windsor federal estate tax she was required to pay following Spyer's death.

Attorneys for the Bipartisan Legal Advisory Group ( BLAG ) in the U.S. House urged the court to dismiss the lawsuit. BLAG argued that, at the time of Spyer's death ( in 2009 ) , the state's highest court had ruled ( in Hernandez v. Robles, 2006 ) that the state constitution "does not compel recognition of marriages between members of the same sex."

Read more story below....

But Jones, a Clinton appointee, rejected that argument, noting that, in 2009, the New York governor, attorney general, and comptroller had each "endorsed the recognition of Windsor's marriage." And she noted that, since 2006, state appellate courts had upheld as valid marriage licenses from other jurisdictions, including Canada.

In her decision, Judge Jones noted that Windsor and Spyer had been together for 44 years and had obtained a domestic partnership from New York City and a marriage license from Toronto, Canada. Although New York State did not recognize their marriage at the time of Spyer's death, in 2009, Spyer left Windsor her entire estate in her will.

"Because of the operation of DOMA," wrote Jones, "Windso did not qualify for the unlimited marital deduction [ available under federal law to heterosexual widows ] and was required to pay $363,053 in federal estate tax on Spyer's estate, which Windsor paid in her capacity as executor of the estate."

In explaining the U.S. Department of Justice's position concerning DOMA, Jones misstated that the executive branch decided "not to enforce DOMA." In fact, the Obama administration said it would continue enforcing DOMA but would not defend it in court as being constitutional.

Jones declined to agree with the ACLU that DOMA should be held to the highest scrutiny of judicial review, noting that 11 courts of appeal have also declined to do so and that the U.S. Supreme Court "conspicuously has not designated homosexuals as a suspect class, even though it has had the opportunity to do so." When a group of people have been designated a "suspect class," laws putting them at disadvantage are held to the highest level of judicial scrutiny.

But Jones found that DOMA Section 3, which bars the federal government from recognizing legitimate marriage licenses for same-sex couples seeking federal benefits tied to marriage, "does not pass constitutional muster" even under the simplest level of judicial review —rational basis. She took the reasons offered by BLAG to explain treating same-sex couples differently—reasons offered and dismissed in other federal rulings on DOMA thus far—and agreed they did not justify DOMA. For instance, while Congress may have had a "legitimate" hope to promote traditional marriage, she said, "it is unclear how DOMA advances it." And while Jones said she "does not disagree that promoting family values and responsible parenting are legitimate governmental goals," she could not "discern a logical relationship between DOMA and those goals."

She declared DOMA Section 3 unconstitutional as applied to Windsor and ordered the government to repay Windsor the estate taxes she paid with interest.

Windsor, in a statement released through the ACLU, said, "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."

ACLU attorney James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project, said the decision "adds to what has become an avalanche of decisions that DOMA can't survive even the lowest level of scrutiny by the courts."

Human Rights Campaign President Joe Solmonese praised Windsor, the ACLU and their cooperating attorneys at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison for their "incredible efforts on behalf of gay and lesbian couples across the nation."

"The dominoes continue to fall on DOMA with yet another federal court rightly calling it unconstitutional," said Solmonese in a statement released by HRC. "All loving and committed married couples should be recognized by the federal government yet we continue to see the terrible pain DOMA inflicts on real families. The real question is when Speaker Boehner will see the writing on the wall and stop wasting taxpayer dollars defending this outrageous law and instead work to repeal it. Paul Clement's record of zero for four speaks for itself."

House Speaker John Boehner ( R-Ohio ) had BLAG vote on hiring an outside attorney, former Solicitor General Clement, to defend DOMA after the Obama administration said it believes DOMA unconstitutional. So far, Clement and his team have lost decisions in Golinski v. OPM, Dragovich v. Treasury, Gill v. OPM, and Windsor.

House minority leader Nancy Pelosi's office issued a statement noting that Clement has "spent over $700,000 in taxpayer funds" while working on 14 DOMA-related cases.

- 2012 by Keen News Service. All rights reserved.

Press release:

NEW YORK — A federal judge ruled today that a critical section of the so-called "Defense of Marriage Act" ( DOMA ) unconstitutionally discriminates against married same-sex couples.

The statute had been challenged by Edith "Edie" Windsor, who sued the government for failing to recognize her marriage to her partner Thea Spyer, after Spyer's death in 2009. Windsor and Spyer were married in Canada in 2007, and were considered married by their home state of New York.

"Thea and I shared our lives together for 44 years, and I miss her each and every day," said Windsor. "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."

In her lawsuit, Windsor argues that DOMA violates the equal protection guarantee of the U.S. Constitution because it requires the government to treat same-sex couples who are legally married as though they were not, in fact, married. Windsor's lawsuit was filed by the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, the American Civil Liberties Union and the New York Civil Liberties Union.

The Obama administration declined to defend the statute in court in February, 2011, so the House of Representatives' Bipartisan Legal Advisory Group appointed an attorney to represent the government in the case.

When Thea Spyer died in 2009, she left all of her property to Windsor, including the apartment they shared. Because they were married, Spyer's estate normally would have passed to her spouse without any estate tax. But because DOMA prevents recognition of the otherwise valid marriages of same-sex couples, Windsor had to pay more than $363,000 in federal estate taxes.

"This decision adds to what has become an avalanche of decisions that DOMA can't survive even the lowest level of scrutiny by the courts," said James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project.

Windsor, a senior computer systems programmer, and Spyer, a clinical psychologist, met in the early 1960s, and lived together for more than four decades in Greenwich Village. Despite not being able to get legally married, they were engaged to each other in 1967. Spyer was diagnosed with multiple sclerosis, and Windsor helped her through her long battle with the disease. They were finally legally married in May 2007.

Roberta A. Kaplan, an attorney for Windsor, added, "Although we expect the attorneys for the House of Representatives to appeal today's decision, we are confident that it will be affirmed on appeal, and we hope that the court will do so expeditiously given that our client is 83 years old."

"Today's decision is a victory for families and a victory for human rights," said New York Civil Liberties Union senior staff attorney Melissa Goodman. "Now, all loving couples in our state can truly enjoy the dignity, respect and legal rights that marriage provides."

More on this case can be found at: www.aclu.org/edie

From the ACLU website: Windsor v. United States - Frequently Asked Questions ( FAQ )

November 9, 2010, Edith "Edie" Windsor filedWindsor v. United States of America, in the United States District Court for the Southern District of New York, challenging the constitutionality of the Defense of Marriage Act ( DOMA ) , a federal law that defines marriage as a "legal union between one man and one woman as husband and wife." Although Edie and her wife Thea Spyer were recognized as married in their home state of New York, DOMA bars the federal government from recognizing their marriage for estate tax purposes. Edie is represented by the American Civil Liberties Union, New York Civil Liberties Union, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

What is this case about?

Edie Windsor and Thea Spyer shared their lives together as a committed couple for 44 years. They became a couple in 1965, got engaged in 1967, and married in Canada in 2007, after it became legal. When Thea died in 2009, the federal government refused to recognize their marriage and taxed Edie's inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. Because of a law called the Defense of Marriage Act, or DOMA, the federal government refuses to treat married same-sex couples, like Edie and Thea, the same way as other married couples. This case points out that it is a denial of the equal protection principles of the Fifth Amendment to the United States Constitution for the federal government to pick and choose which marriages it will recognize for federal purposes, when it otherwise leaves that question entirely up to the states.

Who is the plaintiff?

Edie Windsor and Thea Spyer created a life together for 44 years. They lived in New York City, and married in Canada in 2007. Edie cared for Thea as she waged a 30-year battle with multiple sclerosis, but Thea died in 2009. While New York recognizes their marriage, because of DOMA, Edie, as executor of Thea's estate, was forced to pay significant estate taxes after Thea died, taxes that other surviving spouses would not have had to pay.

What is DOMA?

The Defense of Marriage Act or DOMA is a federal law that was enacted in 1996. In our country, states marry people, the federal government doesn't. But DOMA trumps a state's determination that a same-sex couple is married and says that they are not married for purposes of federal laws and programs. DOMA applies to all federal laws and programs, and says that "the word 'marriage' means only the legal union of a man and a woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Is this case about a federal right to marry?

No. If Edie wins her case, the federal government will have to respect her marriage and give her the same tax treatment it gives other surviving spouses. But she does not ask the court to recognize a federal right for same-sex couples to marry, and does not challenge other state laws or amendments excluding same-sex couples from marriage. Edie and Thea already were legally married, and their marriage is recognized in their home state of New York.

Is this case different from Perry v. Schwarzenegger?

Quite different. The Perry case in California addresses whether the federal constitution requires California to allow same-sex couples the freedom to marry. The Perry district court decision holds that it does, and that case is now on appeal. This case is different because Edie and Thea were already married, and New York already recognizes their marriage. Instead, Edie challenges the federal government's refusal to recognize her valid marriage for purposes of federal tax treatment.

If Edie wins this case, will other states need to recognize marriages of same-sex couples?

No. This case does not affect any state's marriage licensing or recognition laws. It is about the way the federal government treats people who are considered married by the state of New York. Edie seeks to be treated like anyone else who is considered married by the state of New York.

If Edie wins here, will the ruling apply to married same-sex couples living in other states that recognize their marriages?

Yes, at least in a limited way. If Edie wins this case in the end ( after all appeals are over ) , people living in states that license or respect marriage for same-sex couples should no longer be denied equal treatment for federal estate tax purposes. We may need to seek further clarity from the courts to establish that DOMA is unconstitutional in other contexts as well.

Can same sex couples marry in New York?

Yes. In June of 2011 New York became the sixth state to allow same-sex couples to marry. New York isn't just the sixth marriage state, it more than doubled the number of people living amidst the freedom to marry ( from 15.7 million without New York to 35 million with it ) .

Which states and countries recognize marriages of same-sex couples?

Same-sex couples have the freedom to marry in six states ( Massachusetts, Vermont, New Hampshire, Connecticut, Iowa and New York ) and the District of Columbia. In addition, ten countries now allow marriage for same-sex couples ( Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina and Mexico ) .

What can I do to help ensure that the federal government respects my valid marriage?

There's a bill pending in Congress, called the Respect for Marriage Act, that would repeal DOMA and require the federal government to respect all marriages that are valid or recognized in a state. Please urge your Members of Congress to support the Respect for Marriage Act.

We encourage individuals considering a lawsuit to contact us or any of the legal organizations dedicated to eradicating discrimination against gay people, includingGay & Lesbian Advocates & Defenders, Lambda Legal, and the National Center for Lesbian Rights.

Special Considerations for Bi-National Couples and Servicemembers

We are a same-sex couple and one of us is not a U.S. citizen. Will getting married in Canada or elsewhere allow us to get spousal sponsorship benefits for U.S. immigration purposes?

No. Because immigration laws are federal laws, DOMA means your marriage will not be recognized under U.S. immigration law. This case does not challenge that problem. We are working with Immigration Equality to support legislation to change these rules, and encourage you to help out as well.

Important Warning for Bi-National Couples: Any non-U.S. citizen planning to marry a U.S. citizen should consult an immigration attorney before doing so. Many non-immigrant ( temporary ) visas require the foreign national to prove to U.S. Immigration that the foreign national does not intend to remain in the United States permanently. If your marriage becomes known to U.S. Immigration, this evidence of a reason to want to stay permanently in the United States could be a ground to deny your spouse a visa in the future.

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