October 26, 2012 at 5:34 pm EDT | by Chris Johnson
DOJ asks Supreme Court to prioritize Windsor’s DOMA challenge
Edith Windsor, gay news, Washington Blade

The Justice Department is asking DOJ to prioritize Edith Windsor‘s challenge against DOMA (Washington Blade file photo by Michael Key)

The Obama administration is asking the U.S. Supreme Court to make the case of an 83-year-old New York lesbian who had to pay $363,000 in estate taxes its highest priority among the pending lawsuits challenging the Defense of Marriage Act.

In an 11-page supplemental brief filed on Friday, U.S. Solicitor General Donald Verrilli writes that the case of Windsor v. United States — which recently led the U.S. Second Circuit Court of Appeals to conclude DOMA is unconstitutional — should take precedence among other pending lawsuits challenging the anti-gay law.

Previously, the Justice Department has said the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services — which was filed respectively by Gay & Lesbian Advocates & Defenders and Massachusetts Attorney General Martha Coakley — should be the priority because the case once was the only one in which an appeals court ruled against DOMA.

However, that changed after the ruling by the Second Circuit, which became the first appeals court to apply heightened scrutiny — or a greater assumption the law is unconstitutional — in its ruling against DOMA. The application of heightened scrutiny is suggested in the Justice Department as the reason why the Windsor case should take precedence, although it’s not explicitly stated.

“Although Department of Health and Human Services v. Massachusetts… is also a case in which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA,” the brief states. “In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny … whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”

The plaintiff in the case, which was filed by groups including the American Civil Liberties Union, is Edith Windsor, who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer. The two had lived as a couple for 44 years and married in Canada in 2007.

In a statement, Windsor said she’s “pleased” the Justice Department underscoring the importance of her lawsuit against DOMA.

“I am so pleased that the U.S. Solicitor General has recommended that the Supreme Court grant certiorari in my case,” Windsor said. “It has been a long journey up to this point, and I remain hopeful that I will be alive to see the day soon when justice is done for me and for all other married gay and lesbian couples.”

The Justice Department brief explains that the administration previously had concerns about the Windsor case, but each of these concerns was addressed in the Second Circuit ruling. Chief among them was that no appellate court had weighed on the lawsuit, which was obviously addressed when the Second Circuit made its decision.

Additionally, Paul Clement, a private attorney who’s defending the lawsuit on behalf of House Republicans, contended the lawsuit should be brought to certification before the New York’s highest court, the New York Court of Appeals, to allow before the case could move forward because New York had yet to legalize same-sex marriage in 2009. The Justice Department points the Second Circuit dismissed this argument in its decision.

“[A]fter finding New York law sufficiently clear to resolve the issue directly rather than requiring certification to the New York Court of Appeals, the court of appeals unanimously held — consistent with the ‘useful and unanimous’ rulings of New York’s intermediate appellate courts — that New York law recognized plaintiff ’s foreign marriage at the relevant time,” the brief states.

Finally, based on previous case law, the Justice Department disputes a notion that the previous brief asking the Supreme Court to take up the lawsuit should be abrogated in the wake of the Second Circuit.

“Although the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it,” the brief states. “If granted, the writ of certiorari would still be directed tothe court of appeals, and this Court could still exercise jurisdiction…”

If the Supreme Court grants review in the Windsor case, the Justice Department says justices should hold the petitions in the Massachusetts case “pending final resolution on the merits.” But if the court determines neither case is appropriate for review, the Justice Department says other cases — Golinski v. Office of Personnel Management or Pedersen v. Office of Personnel Management — should be considered for review. Federal district courts have ruled against DOMA in those lawsuits and they’re also pending before the Supreme Court, but an appeals court has yet to weigh in on either lawsuits.

Carisa Cunningham, a GLAD spokesperson, was dismissive of the Justice Department’s call to make the Windsor case a higher priority among the challenges against DOMA as opposed to the initial lawsuit her organization filed against the statute.

“DOJ has pretty consistently pointed the court away from Gill for reasons only they can tell you, so this is not surprising to us,” Cunningham said.

Coakley’s office declined to comment on the brief.

[H/T] Prop 8 Trial Tracker

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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