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Another DOMA challenge (UPDATED)

UPDATED Tuesday 2:40 p.m.    The case has now been docketed as 12-63.   A response by the federal government is due on August 16, unless the filing date is extended.


A New York woman, facing a federal tax bill of $363,000 on the estate she inherited from her same-sex spouse, urged the Supreme Court on Monday to add her case to the growing number of test cases reaching the Justices on gay and lesbian rights.   The petition by Edith Schlain Windsor is the fourth petition in recent weeks challenging the constitutionality of a key section of the federal Defense of Marriage Act.  It is the fifth new case on the rights of same-sex couples; beyond the DOMA cases; the other petition tests an Arizona law that limits state workers’ benefits if they are living in a gay relationship.

The case of Windsor v. U.S. (a docket number has not yet been assigned) asked the Supreme Court to hear her petition before the Second Circuit Court ruled on a case that is pending there.  It is up to the Justices to decide whether to bypass the Second Circuit and rule themselves.  At issue in this and the other DOMA cases is the validity of Section 3 of the 1996 law that allows any federal benefits related to marriage to be available only to marriages of a man and a woman.  The lower federal courts are split on that issue.

The cases now pending will compete for the Court’s attention, so lawyers in each must make a plea for the Justices to accept theirs alone or along with others.  In the Windsor case, her attorneys argued that because she is now 83 years old, and because the tax obligation that she faces exists solely because of DOMA, her petition provides a dramatic illustration of the impact that the federal ban can have on couples who are legally married, or their survivors.   If Windsor had been married to a man instead of a woman, she would not have had to pay any federal tax on the estate she inherited with her spouse’s death.   She succeeded in overturning that tax in a federal District Court in New York City last month, but that victory has been put on hold while an appeal goes forward.

Besides confronting the federal liability, Windsor also would have to pay a New York estate tax of $275,528 because state law is keyed to federal liability.  Without the effect of DOMA, Windsor would not have to pay any estate tax to New York.   She will avoid either liability if DOMA’s ban is nullified.

Her petition follows earlier filings on DOMA by the Obama Administration, in two cases (one from the First Circuit, and one from a federal District Court in California), and a separate one by the Republican leaders of the House of Representatives (also from the First Circuit).  The GOP leaders have taken up the legal defense of DOMA since the Administration last year changed its position and began arguing that the federal ban is unconstitutional.    Among the four petitions, the Justices are presented with three different constitutional standards for judging the validity of the federal ban.  In one case, the judge struck down the provision using the most lenient constitutional test, rational basis.  In another, a court nullified it using a somewhat toughened version of rational basis.  And, in another, a judge applied an even more rigorous standard, intermediate scrutiny.

The Supreme Court has not yet declared what level of constitutional scrutiny it will apply to laws that are challenged as discriminatory against gays and lesbians.    It probably has to choose one in deciding on DOMA’s validity.   The Court uses the toughest constitutional test — strict scrutiny — for judging laws that discriminate on the basis of race or national origin.  It uses a heightened scrutiny when weighing challenges based on an individual’s sex.  And it uses rational basis to judge commercial laws or regulations.

Aside from the DOMA cases, another high-visibility gay rights case — on the validity of California’s “Proposition 8,” a flat ban on gay marriage in that state — is on its way to the Court, but has not yet been filed.

The DOMA cases have been filed early enough that they are likely to go before the Justices at their next private Conference, on September 24, following the summer recess.  An announcement about whether any has been granted is likely to come on the following day.

The Windsor case grows out of the long-term partnership of Edith Windsor and Thea Clara Spyer.   The couple first met in New York City in 1963.  They spent 42 years together.  In 1977, after Thea was diagnosed with multiple sclerosis, the couple decided to get married, although they had been engaged to each other since 1967.   They were married in Canada in May 2007.   That marriage was recognized as legal by New York State, in the years before New York itself made such marriages legal for its residents.   Thea died in 2009, and left her entire estate to Edith.






Recommended Citation: Lyle Denniston, Another DOMA challenge (UPDATED), SCOTUSblog (Jul. 16, 2012, 4:18 PM),