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On July 16, 2012, attorneys for Edie Windsor asked the Supreme Court of the United States to hear her suit, Windsor v. United States, which challenges the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). The appeal is unusual because the case has not been heard at the appellate level. The request to expedite a Supreme Court ruling is based in part on Ms. Windsor's age, 83, but may also be part of a wider strategy to persuade the high court to issue a ruling on DOMA as soon as possible.
On June 6, 2012, United States District Court Judge Barbara Jones of the Southern District of New York ruled in Windsor's favor, declaring the Defense of Marriage Act unconstitutional. In a 26-page opinion, she declared that DOMA is unconstitutional insofar as it forced Edie Windsor to pay estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.
Spyer and Windsor had been lovers since 1963. They registered as domestic partners in New York in 1993 as soon as that option became available. In 2007, as Spyer's health began to deteriorate, the couple married in Canada. Spyer died in 2009 and Windsor was obliged to pay $353,000 in federal estate taxes that would have been exempted had they been a married heterosexual couple.
Judge Jones found DOMA unconstitutional under the lowest level of judicial scrutiny, "rational basis." She rejected as unconvincing all the attempts to find a rational basis for the legislation presented by the House Bipartisan Legal Advisory Group, which opposed Windsor's lawsuit.
She awarded judgment in the amount of $353,053, plus interest and costs allowed by law.
Ordinarily, the decision would be appealed to the U.S. Second Circuit Court of Appeals. In asking to bypass this step and be heard next by the Supreme Court, Windsor's lawyers emphasized their client's age and health.
"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."
Attorneys arguing both for and against DOMA have recently petitioned the Supreme Court to consider similar DOMA cases. In June, BLAG lawyers filed an appeal in the consolidated cases 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 in those cases. On July 3, the Justice Department also asked the Supreme Court to consider the constitutionality of DOMA by taking up the Massachusetts cases and, more suprisingly, Golinksi v. Office of Personnel Management, a case out of California that, like Windsor, has not been reviewed at the appellate level.
The petitions for review in so many DOMA cases from three different circuits may reflect a strategy to persuade the court that the issue is ripe for review.
In addition, the multiple petitions may also be a way to resolve a potential difficulty if Justice Elena Kagan, who as Solicitor General may have participated in discussions of the Massachusetts cases, recuses herself from voting on them. If the Court deadlocks 4-4, the lower court decision is upheld, but the decision would lack precedential value.
But, as Nan Hunter has pointed out on her blog Hunter of Justice, "Recusal standards pertain to the specific lawsuit, not the broader question. So Justice Kagan could be recused from consideration of the appeal in the Massachusetts/Gill case, which was a political hot potato in DoJ while she was Solicitor General, but not required to absent herself from the adjudication of other cases that challenge DoMA's constitutionality."
Thus, it may be that, without necessarily coordinating their actions, the attorneys for the Department of Justice and for Edie Windsor may be pursuing a similar strategy, one that will result in an early decision on the constitutionaliy of DOMA and permit the participation of all nine justices in that decision.
The Supreme Court will decide what cases it will consider in its 2012-2013 term by September. If it does decide to review the DOMA cases, arguments are likely to be scheduled in late 2012 or early 2013, and a decision reached by June 2013.
In the video below, from June 7, 2012, Edie Windsor responds to the news that a federal district court has ruled in her favor.
Below is the petition seeking Supreme Court review.