July 26, 2012 | by Chris Johnson
NYC latest to call on Supreme Court to overturn DOMA
gay news, Washington Blade, Michael Bloomberg

New York City Mayor Michael Bloomberg is calling on the U.S. Supreme Court to strike down DOMA (Blade file photo by Michael Key)

New York City Mayor Michael Bloomberg and lesbian New York City Council Speaker Christine Quinn have joined the growing choir of individuals calling on the U.S. Supreme Court to overturn the Defense of Marriage Act.

On Wednesday, attorneys representing the City of New York — as well as Bloomberg and Quinn in their official capacities — filed a friend-of-the-court brief asking the justices to take up lesbian Edith Windsor’s challenge to DOMA, known as Windsor v. United States.

Windsor, a New York City widow, had to pay nearly $363,000 in federal estates taxes upon the death of her spouse, Thea Spyer, in 2009 because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.

The 14-page brief calls DOMA “the last remaining obstacle to achieving legal equality between the city’s married couples” while making the case to strike down the anti-gay law.

“Solely because of DOMA, Edith Windsor was required to pay more than $363,000 in federal estate tax on her legal spouse’s estate,” the brief states. “If Ms. Windsor’s spouse had been a man, the marital exemption provided by federal law would have applied and she would not have owed any federal estate taxes at all. As a result of DOMA, thousands of legally married same-sex couples in the New York City are being subjected to this type of disparate treatment because their legal marriages are not recognized under federal law.”

The American Civil Liberties Union, which filed the lawsuit on behalf of Windsor, has already filed a request with the Supreme Court calling on justices to take up the lawsuit and overturn DOMA. Windsor has already seen some success. The U.S. District Court for the Southern District of New York already ruled in her favor and ordered that Windsor be refunded the $363,000 in taxes she had paid.

The request from New York City is one of several calling on the Supreme Court to review DOMA. Both supporters and defenders of the law have made requests to the Supreme Court, including the House Republican-led Bipartisan Legal Advisory Group, which took up legal defense of DOMA after the Obama administration announced it would no longer defend it, and the Justice Department, which has since been actively litigation against DOMA. Massachusetts Attorney General Martha Coakley has also asked the Supreme Court to review and strike down DOMA on the basis that it violates a state’s right to regulate marriage under the Tenth Amendment as has Lambda Legal in the case of Golinski v. Office of Personnel Management.

The brief presents the same question to the Supreme Court that has already been asked in earlier briefs asking justices to consider the anti-gay law: Does Section 3 of DOMA violate the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under state law?

But the brief goes into different territory than previous requests because it explains why DOMA has a particularly adverse impact on New York City. The State of New York, under the leadership of Gov. Andrew Cuomo (D), passed marriage equality legislation last year and had recently celebrated the one-year anniversary of enacting that law.

The brief lays out two main arguments why DOMA unfairly impacts New York City: (1) DOMA forces it to be “the unwilling agent” of federally required separate treatment of lawfully married employees and (2) the disparate treatment of legally married couples under DOMA undermines the city’s non-discrimination laws.

According to the brief, one way in which DOMA complicates the policy administration in New York City is related to the health benefits, retirement plans and family leave offered to city employees and their spouses.

“As an employer, the city must identify the gender of the spouses of its lawfully married employees and then single out those employees with a same-sex spouse,” the brief states. “DOMA enforces discriminatory tax treatment of spousal health care benefits. In many other benefit-related matters, the city must either incur the cost and administrative burden of ‘workarounds’ (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or discriminate in its treatment of its married workforce.”

Rose Saxe, senior staff attorney for the ACLU’s LGBT & AIDS Project, praised New York City officials for joining the call for the Supreme Court to review Windsor’s challenge to DOMA.

“We are very pleased that the City of New York has joined our request to have the Supreme Court consider Edie Windsor’s case, particularly in light of the harm that DOMA causes so many married New Yorkers,” she said.

The Supreme Court won’t be able to decide whether to hear the case until justices return from summer recess and the start their conference on September 24.

CORRECTION: An initial version of this article stated that the New York City brief was the fifth petition asking the Supreme Court to review DOMA. That count didn’t take into account a petition filed by Lambda Legal. The initial also inaccurately stated the brief was filed Thursday. The Blade regrets the errors.

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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