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DOMA: Windsor supports review

Lawyers for a New York woman who is the surviving spouse of a same-sex marriage urged the Supreme Court on Friday to go ahead and decide the constitutionality of the federal Defense of Marriage Act, rather than leaving that law to the uncertain fate of lower court rulings, one case at a time.

The brief for Edith Schlain Windsor of New York City argued that, after finding that the Obama administration has a legal right to appeal in the case of United States v. Windsor (docket 12-307), the Court could allow the House of Representatives’ Republican leaders to “piggyback” on the government appeal to defend DOMA’s validity.

This was the first brief filed in a round of documents due Friday in the Windsor case.  Later today, the administration’s Justice Department is scheduled to file arguments on two issues: the constitutionality of DOMA’s ban on federal benefits for married same-sex couples, and the legal right of the government to pursue the appeal challenging DOMA even though it won in lower courts.  The House’s GOP leaders are also due to file a brief on the jurisdictional issues.  (The blog will cover those filings when they become available.)

The attorneys for Windsor are due to file a brief on Tuesday, offering her views on the constitutionality of DOMA.   The Friday brief was confined to the question of the Court’s jurisdiction to hear the government appeal.

Noting that the federal government continues to enforce DOMA, and thus has yet to refund the $363,053 that she paid in estate taxes after her same-sex spouse died and left a sizable inheritance, Windsor contended that the federal courts — including the Supreme Court — clearly have jurisdiction over the validity of that tax.  Her brief argued that “DOMA clearly causes” her tax liability, because that law’s Section 3 restricts all federal benefits to marriages of opposite-sex couples.

Her case, the brief noted, “is a tax refund case,” and thus “the United States is the only party that can provide the relief Ms. Windsor seeks.”  And, on that basis, the government has a right to seek a final ruling in the Supreme Court on the duties that DOMA imposes on the federal government as it administers more than a thousand laws and programs dealing with marriage.

When the Court granted review of the government appeal in the Windsor case, it asked the parties to make arguments on whether the Court has jurisdiction over an appeal by the government when the government view prevailed in lower courts, and whether the House’s GOP leaders had a legal right to appeal in the case.

In offering an answer to the first question, the Windsor brief said that, once the Court found that the government could appeal and thus give the Justices jurisdiction, it was important that the Court put itself in a position to rule finally on DOMA’s constitutionality. “Leaving that question to the lower courts will perpetuate the harmful uncertainty faced by Ms. Windsor and hundreds of thousands of others,” the brief said.

On the Court’s second question, the Windsor brief asserted that whether the Republican leaders in the House have a right to be in court does not affect the Court’s power to rule on DOMA.  The GOP leaders “can properly assert ‘piggyback’ standing and participate fully in this litigation,” it said.

Recommended Citation: Lyle Denniston, DOMA: Windsor supports review, SCOTUSblog (Feb. 22, 2013, 2:58 PM),