DOMA Heading to Supreme Court?


The American Civil Liberties Union ("ACLU") recently filed a writ of certiorari with the U.S. Supreme Court in the case of Windsor v. United States. This case challanges the constitutionality of the Defense of Marriage Act ("DOMA"). 

The facts of the case are relatively straight forward.  In 2010 2010 Edith Windsor ("Windsor") filed a lawsuit against the federal government, seeking reimbursement of over $363,000 in estate taxes that she paid as the result of the death of her same-sex spouse, Thea Spyer ("Spyer"). The New York couple were legally married in Canada in 2007 and Spyer died in 2009, leaving her entire estate to Windsor.

Since under DOMA, federal law does not legally recognize same sex marriages (DOMA only recognizes marriages between one man and one woman), Windsor's inheritance of Spyer's estate resulted in a $363,053 federal estate tax bill. This would not have been the case had Windsor and Spyer been considered legally married under federal estate tax law, since no federal estate taxes would have been owed due to the unlimited marital deduction available to married spouses.

Windsor promptly paid the estate tax bill and then the ACLU filed the lawsuit on her behalf, asking for reimbursement of $363,053 plus interest.

In June of 2012, the United States District Court for the Southern District of New York ruled that Section 3 of DOMA, which bars the federal government from recognizing marriages between same sex couples who are seeking federal benefits tied to being married, is unconstitutional as it relates to the Windsor case and ordered the government to pay back the estate taxes paid by Windsor plus interest.  This would be a big win for the LGBT community is this decision is allowed to stand.

After the decision was handed down, the Bipartisan Legal Advocacy Group of U.S. House of Representatives ("BLAG") filed an appeal of the ruling with the U.S. Court of Appeals for the 2nd Circuit, the legal next step for the case to progress. BLAG has been defending DOMA in court since President Obama's Justice Department has been advised not to defend it.  

As soon as BLAG filed its appeal, the ACLU immediately asked for the appeals court to expedite the case, citing Windsor's age (83) and declining health (heart condition) as reasons for the case to be fast-tracked. The 2nd Circuit agreed.

But the ACLU didn't stop there.  The ACLU filed a writ of certiorari on Windsor's behalf directly to the U.S. Supreme Court, again citing Windsor's age and declining health as reasons for the case to jump over the Court of Appeals and instead be decided once and for all by the U.S. Supreme Court.  Maybe the ACLU is feeling a little more optomistic given the Supreme Court and Justice Robert's recent decision on Obamacare.

If the Supreme Court agrees to hear the Windsor case (and my guess is they won't because it is not the typical procedural way cases move), it could do so as early as next spring. If the Supreme Court does not hear the case, it will be heard in the U.S. Court of Appeals for the 2nd Circuit in the fall.