July 16, 2012 | by Chris Johnson
N.Y. widow asks Supreme Court to take up DOMA lawsuit
Edith Windsor

Edith ‘Edie’ Windsor is asking the Supreme Court to take up her case against DOMA (Washington Blade file photo by Michael Key)

An octogenarian New York lesbian who recently won her case against the Defense of Marriage Act at the district court level is asking the U.S. Supreme Court to take up her lawsuit so that a final ruling can be made in her case.

On Monday, Edith “Edie” Windsor, 83, asked the high court to consider her lawsuit, Windsor v. United States, which challenges Section 3 of DOMA on the basis that it unfairly forced her to pay more than $363,000 dollars in estate taxes upon the death of her spouse, Thea Spyer, in 2009.

Windsor has already had a small victory. On June 6, the U.S. District Court of the Southern District of New York ruled that Windsor should be refunded the $363,000 dollars she paid in taxes. If the Supreme Court takes up the case, it would mean the lawsuit would skip the next more customary step of consideration before the U.S. Second Circuit Court of Appeals, which has already agreed to consider the case on an expedited basis.

The petition lays out four main reasons why the Supreme Court should consider her case: the case presents a constitutional question of “exceptional importance” because of the fundamental nature of marriage; lower courts are in significant disarray over the constitutionality of DOMA; the lawsuit presents an “excellent vehicle” to resolve the law’s constitutionality; and consideration before the high court before an appeals court ruling is warranted because of Windsor’s age.

“Ms. Windsor is 83 years old and suffers from a serious heart condition,” the petition states. “Because the District Court’s ruling is entitled to an automatic stay of enforcement … Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.”

Windsor and Spyer lived together for more than four decades in Greenwich Village. They were engaged in 1967 despite being unable to legally marry at the time, but finally were legally wed in 2007 in Canada. Spyer died in 2009 after battling for decades with multiple sclerosis, and left all her property to Windsor.

The petition was filed on behalf of Windsor by her attorneys at Paul, Weiss, Rifkind, Wharton & Garrison LLP; the American Civil Liberties Union; the New York Civil Liberties Union; and the Stanford Law School Supreme Court Litigation Clinic.

Donna Lieberman, executive director of the New York Civil Liberties Union, said in a statement overturning DOMA is particularly important in New York, which last year legalized same-sex marriage.

“At least 10,000 same-sex couples have been married in New York since our marriage law went into effect,” Lieberman said. “But DOMA subjects gay and lesbian married New Yorkers to a form of second-class citizenship. All married couples should have their marriages respected by the federal government, once and for all.”

The Obama administration stopped defending DOMA in court in February 2011. The Bipartisan Legal Advisory Group, or BLAG, a House body convened by Speaker John Boehner (R-Ohio), has since taken up defense of the anti-gay law in the administration’s stead.

Attorneys arguing both for and against DOMA have already asked the Supreme Court to consider similar DOMA cases. Late last month, BLAG lawyers representing House Republicans filed an appeal to the high court in the consolidated case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services after the First Circuit Court of Appeals ruled DOMA unconstitutional as a result of the litigation. A week later, the Justice Department also asked the Supreme Court to consider the constitutionality of DOMA by taking up the Massachusetts case and Golinksi v. United States.

Douglas NeJaime, who’s gay and a professor at Loyola Law School, said Windsor’s petition is noteworthy because the Supreme Court is “getting inundated” with requests to consider DOMA.

“The petitioners in Windsor are highlighting the fact that if the court takes the case, they could affirm – and rule DOMA unconstitutional – even under a rational-basis standard of review, thereby leaving unresolved the question of which level of scrutiny should be applied to sexual orientation-based classifications,” NeJaime said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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