The Defense of Marriage Act, a law barring the U.S. government from recognizing same-sex unions, improperly discriminates against gay men and lesbians and should be declared unconstitutional, a lawyer for an 83-year-old widow told an appeals court.
Their marriage, which was performed in Canada, was recognized under the laws of New York, where the couple lived, Windsor’s lawyers said. Spyer’s estate would have been exempt from the taxes if she had been married to a man. A federal judge in Manhattan sided with Windsor in June, finding the Defense of Marriage Act unconstitutional.
“This case is not about a federal right to marry,” Windsor’s lawyer, Roberta Kaplan, told a three-judge panel of the U.S. Court of Appeals today. Congress improperly substituted its own definition of marriage in DOMA, instead of respecting state decisions on marital status as it had done in the past, Kaplan argued.
The case follows a May decision by a federal appeals court in Boston that the law, which defines marriage as only between a man and a woman, is unconstitutional. That is the only such ruling on DOMA by a U.S. appeals court.
“The main issues in these cases revolve around equal protection, the idea that this federal law treats similarly situated people differently,” said Jonathan Entin, who teaches constitutional law at Case Western Reserve University law school in Cleveland.
Entin said he expects the final decision on whether DOMA is constitutional to rest with the U.S. Supreme Court.
Kaplan today told the judges that DOMA is unconstitutional because Congress had no legitimate government interest that was rationally served by the law. She urged the judges to review the statute with a heightened level of scrutiny because it discriminates against a group that has suffered from bias.
James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual and Transgender Project, said in an interview yesterday that justifications for DOMA by its supporters amount to little more than “discomfort with gay people” and with same-sex marriage. The ACLU is helping Windsor challenge the law.
The judges considering the case are Dennis Jacobs, the court’s chief judge, appointed by Republican President George H.W. Bush; Chester Straub, an appointee of Democratic President Bill Clinton, who signed the act into law in 1996; and Christopher Droney, who was appointed by President Barack Obama, also a Democrat. The judges didn’t say when they will decide on the appeal.
DOMA affects more than 1,000 federal laws that refer to marriage, according to the opinion by the Boston-based appeals court. The law may affect more than 100,000 couples, the judges said.
In February, U.S. Attorney General Eric Holder told Congress that the Obama administration would no longer defend DOMA. The case for upholding it is being argued in the Windsor case by the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
Windsor’s position was supported today by a Justice Department lawyer who, under questioning from the judges, acknowledged that the department had defended the constitutionality of DOMA in the past.
Paul Clement, who urged the judges to overturn the lower- court ruling, said that at the time DOMA was enacted, no states permitted same-sex marriage. Congress’s intention was “to maintain this traditional definition that was in place in all 50 states,” he said.
Clement, who was solicitor general under President George W. Bush, argued that DOMA was rationally related to the legitimate government interest in ensuring that federal laws and benefits would be administered uniformly, rather than differing state by state.
Gregory Katsas, who defended DOMA as assistant attorney general for the Justice Department’s Civil Division in the administration of George W. Bush, said in an interview yesterday that one of the strongest arguments DOMA supporters point to is the long history of defining marriage as a union between a man and a woman.
“Same-sex marriage is something that’s relatively novel and not that widely accepted,” said Katsas, now a partner with the Jones Day law firm in Washington. He said it’s a “hard sell” for opponents to argue that Congress had no rational basis for restricting the definition of marriage, for purposes of federal law, to include only heterosexual couples.
Windsor, who worked for International Business Machines Corp., and Spyer, a clinical psychologist, met in 1963 and became engaged in 1967, according to the complaint filed in the case. They married in Toronto in 2007. New York, which didn’t allow gays and lesbians to marry at the time, recognized same- sex unions that were performed in jurisdictions where they were legal. Last year, New York Governor Andrew Cuomo signed a law legalizing gay marriage in the state.
The case is Windsor v. U.S., 12-2435, U.S. Court of Appeals for the Second Circuit (Manhattan).
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