… 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.



18 Comments

“Of course, John Boehner’s Bi-Partisan Legal Advisory Group’s (BLAG) objections still stand in the way of this case.”
Of course.
In other news, the sun rose in the east this morning.
Wow! That’s intense news!
Totally recc’d.
Do watch the film Ellie found for the front page post — what a love story!
The only reason Holders DOJ did this is to avoid any accusations that Obama is raising taxes on rich people
One more step – what good news.
Wow! That really tells it.
*wipes eyes*
Thanks for the great news Teddy
YAY for humanity and equality
That vid is just beautiful
Help this poor legalspeak impaired dfh out . . .
Why did Windsor have to pay a tax on a dead spouse that courts don’t recognize in the first place?
Did Windsor INHERIT BY WILL her wife’s earthly riches upon demise?
I guess if one inherits stuff, you get taxed on it . . . regardless of spousal legalities? I don’t know.
I sure as heck don’t understand this, but if it’s an attack on DOMA constitutionality which in and of itself is an attack on same sex marriages and benefits, then I’m totally down n happy . . .
But I just don’t understand the sitch . . . lil help Pups?
Yay!
But if I understand things (…no guarantees there…), it was tax law that helped change things. True? Imagine! Taxes!?!?!
Ok, just watched the vid . . . talk about busting out bawlin like baby . . . and it ‘splains what I was confused about, inheritance issues . . . wow . . . what a story those two.
You know, I’ve really been concentrating on the SocSec issues and stuff so much lately and sublimating the equality stuff to a certain degree.
But they’re really so much the same, and I’m getting even more mad than I thought I could be.
And THAT’S pretty damn mad!
Taxation without Equality is Wrong.
Re: “Did Windsor INHERIT BY WILL her wife’s earthly riches upon demise?”
————-
I was wondering about that. I don’t think this has to do with the deceased’s will.
I’m not an accountant or tax attorney but worked in a bank for years. My hunch is Windsor is the named beneficiary on the deceased’s tax deferred retirement funds.
If Windsor were married to the deceased (and were it not for DOMA) Windsor would have been able to set up a “spousal IRA” to receive the deceased’s retirement funds directly without having to cash out those funds first. There would be no tax due from Windsor at that time based on that transaction — but it’s a tax deferred deal available to bona fide spouses only.
But if Windsor were the beneficiary and NOT deemed to be a spouse (as per DOMA), she could not set up the spousal IRA according to the Feds, since the Feds don’t recognize such marriages. Windsor could still be the beneficiary, but she would have to cash out all of the deceased’s retirement funds and pay the taxes right away. Think of that as a windfall and probably taxed at a much higher rate than if Windsor had been able to withdraw small amounts from a spousal IRA each year going forward (or beginning when she reaches retirement age).
I believe the two owned jointly some righteous real estate both in Manhattan and in the Hamptons. Opposite sex married couple can inherited without any tax liability to the IRS. Because the feds don’t recognize this couple as married, Edie has to pay estate taxes on the half the value of the real estate and on the value of everything her spouse left to her…the tax on that was in the high $300,000s. The real estate is taxed at current day value not at the value it was acquired even if they acquired it together.
Windsor WAS legally married to the deceased but due to DOMA no spousal exemptions apply.
Major step forward. I can’t even imagine how proud Thea would have been of Edie…
Thanks for that clarification, Karen.
So your scenario is the one actually in play here. The one I presumed is parallel and with a similar outcome.
It will be interesting to see what the courts do with this, and if there is a lookback provision allowed for people to recoup what they were forced to pay due to DOMA.
Seems like a lot of similar cases could be forthcoming under these various scenarios.
After the Obama DoJ fought her for 2+ years.
Don’t drink the KOOL AID.
Nobama ’12
links to narrative (admittedly mine)
at:
Are the Koch brothers afraid of the facts?
FDL
http://pages.citebite.com/e9s9h4g9amkc