September 7, 2012 at 5:57 pm EDT | by Chris Johnson
House Dems intercede on behalf of N.Y. widow against DOMA

House Minority Leader Nancy Pelosi leads a group of 145 House Democrats expecting to file a friend of the court brief on behalf of the Edie Windsor case. (Washington Blade file photo by Michael Key)

House Democrats are yet again interceding on behalf of litigation challenging the Defense of Marriage Act — this time as one of 15 parties expected to file legal briefs before an appellate court in a case involving a lesbian New York widower.

A group of 145 House Democrats — led by House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) — were expected to file a friend-of-court brief on Friday in the case of Windsor V. United States, which is pending before the U.S. Second Circuit Court of Appeals.

The plaintiff in the lawsuit, filed by the American Civil Liberties Union and other legal groups, is 83-year-old Edie Windsor, who was forced to pay $363,000 in estate taxes upon the death in 2009 of her spouse Thea Spyer because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. The couple first met in 1963, but married in 2007 in Canada after an engagement that lasted more than 40 years.

The 30-page brief lays out the case why DOMA should be stricken down as unconstitutional, arguing Congress passed DOMA in 1996 out of animus toward gay people.

Additionally, the brief says DOMA unfairly imposes estate taxes upon married same-sex couples, saying “it is impossible to believe that any legitimate federal interest is rationally served by depriving a widow like [Edie] Windsor of the marital deduction that allows married couples to pass property to the surviving spouse without penalty, thus maximizing the survivor’s financial well-being.”

It’s not the first time House Democrats filed a legal brief in favor of litigation challenging DOMA. Democrats also filed a legal brief before the U.S. First Circuit Court of Appeals in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services as well as before the U.S. Ninth Circuit Court of Appeals in the case of Golinksi v. Office of Personnel Management.

However more have signed today’s brief than ever before. The new 13 signers who didn’t pen their name to the last brief are Reps. Ron Barber (D-Ariz.), Corrine Brown (D-Fla.), Russ Carnahan (D-Mo.), John Carney, Jr., (D-Del.), Kathy Castor (D-Fla.), Norman Dicks (D-Wash.), Al Green (D-Texas), Marcy Kaptur (D-Ohio), Bill Pascrell, Jr., (D-N.J.), Ed Perlmutter (D-Colo.), Silvesre Reyes (D-Texas), Allyson Schwartz (D-Pa.) and Albio Sires (D-N.J.).

Other signers are House Minority Whip Steny Hoyer (D-Md.), Assistant Minority Leader Jim Clyburn (D-S.C.), House Judiciary Committee Ranking Member John Conyers (D-Mich.), and the four openly gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).

The House Republican-led Bipartisan Legal Advisory Group, under the direction of House Speaker John Boehner (R-Ohio), appealed the lawsuit to the Second Circuit after the U.S. District Court for the Southern District of New York ruled in favor of Windsor and against DOMA. Oral arguments are set for  September 27. It’s unclear whether any friend-of-the-court briefs will be filed on their behalf.

Other groups that are expected to file friend-of-the-court briefs in favor of Windsor are local governments, including New York City and the States of New York, Connecticut and Vermont; the Partnership for New York City — a group of CEOs from New York City businesses — the NAACP Legal Defense and Educational Fund; Bar associations, labor unions and civil rights, religious, cultural and LGBT organizations; Social workers and national mental health and medical organizations; and professors of U.S. history, family law, and family and child welfare law.

Donna Lieberman, executive director of the New York Civil Liberties Union, had particular praise for the briefs that were filed by the State of New York and New York City — both of which are the jurisdictions in which Windsor resides.

“New York is home to more married same-sex couples than any other state,” Lieberman said. “It only makes sense that our state and local governments would join the dozens of other groups supporting this case. No committed family should be relegated to second-class status.”

The ACLU has asked the Supreme Court to take up the case before the Second Circuit makes its decision on the lawsuit, but the friend-of-the-court briefs that were expected on Friday were delivered to the lower court where the case currently stands. The Supreme Court may decide to take up the lawsuit after the justices return from summer recess.

James Esseks, director of the ACLU LGBT Project, said the number of parties who have filed briefs on behalf of Edie Windsor demonstrates the extent to which DOMA harms married same-sex couples.

“The number and scope of the parties supporting Edie’s case illustrate the breadth of the harms that DOMA inflicts on married same-sex couples,” Esseks said. “It is time for the courts to bring an end to this discriminatory law once and for all.”

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

  • Of all the DOMA challenges, this is the one SCOTUS is least likely to take. Windsor was married in Canada and it is likely but not perfectly clear that her marriage was valid in New York at the time of her partner’s death. Only a NY court can decide that, so the case really has to be bounced there before the Supremes accept it.

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