… and the walls come tumbling down: The Department of Justice yesterday asked a federal District Court to grant Edith Windsor her estate tax refund because the section of the federal Defense of Marriage Act (DOMA) that required her to pay $351,000 on her deceased same-sex spouse’s estate is unconstitutional.
Back on July 1, the Department of Justice took a big step in defining what its Feb. 23 decision that the federal definition of marriage found in Section 3 of the Defense of Marriage Act is unconstitutional would look like. In Karen Golinski’s case seeking equal health benefits for her wife, DOJ argued that the case should not be tossed out of court and should be allowed to proceed.
On Aug. 19, DOJ went a step further, telling a judge in the Southern District of New York that Edith Windsor — who is seeking a refund of the more than $350,000 estate tax bill that she had to pay because her marriage to her deceased wife, Thea Spyer, was not recognized by the federal government — should be granted that refund because DOMA’s federal definition of marriage is unconstitutional.
This is the first affirmation by the federal Department of Justice that a case brought against DOMA should succeed because Section 3 is unconstitutional.
In concluding its brief filed on Friday in Windsor’s case, DOJ — led by Assistant Attorney General Tony West and signed by DOJ senior trial counsel Jean Lin — argues, “Section 3 of DOMA fails heightened scrutiny, and this Court should deny the motions to dismiss Plaintiff’s constitutional claim and grant Plaintiff’s motion for summary judgment.”
This is a very exciting step forward for married same-sex couples everywhere who seek to be treated the same as other married couples by our federal government.
In many of the federal appellate circuits across the country, the courts have ruled at some point on the level of scrutiny to be applied to classifications based on sexual orientation. In Friday’s filing, however, DOJ notes — as Holder had noted on Feb. 23 — “The Second Circuit has not ruled on the appropriate level of scrutiny for sexual orientation classifications.” The Second Circuit includes New York, where Windsor filed her case, and Connecticut, where the GLAD Pedersen case was filed.
DOJ’s Aug. 19 brief then lays out its case for heightened scrutiny to apply to sexual orientation classifications, arguing that “careful consideration of the factors the Supreme Court has identified as relevant to the inquiry demonstrates that classifications based on sexual orientation should be subject to heightened scrutiny.”
Of course, John Boehner’s Bi-Partisan Legal Advisory Group’s (BLAG) objections still stand in the way of this case:
In addition to DOJ’s filing, Windsor’s lawyers also filed a response to BLAG, arguing in part that DOMA should be found unconstitutional — even should the court decide that rational basis applies.
The court had set a timeline earlier this year for exchange of evidence among the parties and for the briefing that took another step forward on Friday. BLAG’s reply is due by Sept. 2.