By Julie Bolcer
Originally published on Advocate.com July 26 2011 12:25 PM ET
New York attorney general Eric Schneiderman filed a brief Tuesday in the case of Windsor v. United States to challenge the constitutionality of the Defense of Marriage Act, arguing that DOMA violates same-sex couples’ right to equal protection under the law and must be invalidated.
The friend-of-the-court brief, filed in the U.S. District Court for the Southern District of New York, argues that DOMA, which in section 3 prohibits the federal government from recognizing same-sex unions valid in the state, violates same-sex couples' right to equal protection under the law. The Obama administration announced earlier this year that it would no longer defend DOMA.
According to a statement from the attorney general’s office, “In the amicus curiae brief, Schneiderman argues that in redefining the term marriage, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He goes on to argue that the statute is an improper intrusion on the traditional role of states in defining marriage; that it discriminates based on sex and sexual orientation and therefore must be subjected to heightened scrutiny; and that DOMA fails any level of scrutiny because it does not advance any legitimate federal interest.”
The brief asks the court to grant the plaintiff’s motion for summary judgment and declare section 3 of DOMA unconstitutional.
Edie Windsor, who lives in New York, married her late spouse Thea Spyer in Canada in 2007, a marriage that was recognized under New York state law. However, because of DOMA, the federal government taxed the inheritance Spyer left for Windsor after she died in 2009, forcing the widow to pay more than $360,000. In her suit, Windsor seeks a refund of the tax and argues that DOMA violates the equal protection principles of the U.S. Constitution.
Schneiderman said, “The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution and improperly intrudes on the traditional role of states in defining marriage. The State of New York has long recognized out-of-state, same-sex marriages and the enactment of the Marriage Equality Act further cements our state’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”
Last year in his campaign for attorney general, Schneiderman, a former state senator who voted for the marriage equality bill that failed in 2009, pledged to join the fight against DOMA if elected. The brief was filed two days after the marriage equality law took effect in New York. Schneiderman is one of three defendants, in addition to the state senate and department of health, named in a lawsuit marriage equality opponents filed on Monday alleging improper activity in the process preceding the vote in the state legislature last month.