July 26, 2011 at 7:43 pm EDT | by Phil Reese
48 hours into marriage equality, New York leaps into Federal DOMA case
Edith Windsor

Edith 'Edie' Windsor. (Washington Blade photo by Michael Key)

Before the ink had even dried on many of the first marriage licenses for same-sex couples in New York, the state Attorney General was busy filing a brief in one of the several cases against the Federal Defense of Marriage Act, which prevents the Federal Government from recognizing same-sex marriages performed in the states where such marriages are legal, and preempts the Constitutional ‘Full Faith and Credit’ cause by allowing states to refuse to recognize some marriages performed in elsewhere.

Tuesday, Attorney General Eric Schneiderman filed an Amicus Curie brief in the U.S. District Court for the Southern District of New York in Windsor v. United States, a case brought against the government by the American Civil Liberties Union on behalf of New York widow Edie Windsor. When her wife Thea passed away in 2009, Edie was forced to pay penalties most married couples don’t have to pay because her marriage was not recognized, though the two had shared a life together for over 44 years.

Though their 2007 Canadian wedding was recognized by the state of New York, the Federal Government viewed Thea and Edie as strangers when they penalized Edie $350,000 of her inheritance from Thea when she passed away. The Attorney General contends that DOMA violates same-sex couples’ rights to equal protection under the law. Schneiderman agreed with other arguments against DOMA — including U.S. Attorney General Eric Holder’s take; supported by the President — saying the Defense of Marriage Act is “an unprecedented intrusion into the power of the state to define marriage,” and that it “does not advance any legitimate governmental interest.”

Upon coming to a similar conclusion earlier this year, the President and Attorney General Holder announced they would cease defending DOMA against its numerous lawsuits nationwide, leading to Speaker of the House John Boehner to set aside several hundred thousand taxpayer dollars to allow House Republicans to continue defending the law in the Justice Department’s place.

“The state of New York should be commended for standing up for fairness and dignity for all families by opposing the so-called Defense of Marriage Act,” James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, said in a statement released Tuesday. “Congress must now do the right thing and pass the Respect for Marriage Act, repealing this outdated and mean-spirited law once and for all. Married couples like Edie and Thea, who cared for each other for over four decades, should not be excluded from the federal protections that all other married couples receive.”

The Attorney General’s move is not a big surprise. In 2008, under an order from then-Governor David Patterson, New York began recognizing same-sex marriages performed in other jurisdictions. What may be surprising for some is the speed at which the Attorney General jumped into the case, so soon after the law took effect bringing New York in line with other states suing the Government over DOMA like Massachusetts, where same-sex marriage is also recognized.

Along with the ACLU, the Windsor case is being brought by the New York Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP. It is one of several throughout New England and the West Coast challenging the 1996 DOMA law signed by then President Clinton.


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