Edie Windsor and Thea Spyer
Supreme Court Asked to Hear DOMA Challenge in Windsor Case

By Julie Bolcer

Originally published on Advocate.com July 16 2012 12:31 PM ET

Edith Windsor, an 83-year-old New York widow forced to pay more than $363,000 in estate taxes because the federal government did not recognize her marriage to her late spouse Thea Spyer, filed a petition Monday asking the Supreme Court to hear her challenge against the Defense of Marriage Act.

The American Civil Liberties Union filed the petition, known as a writ of certiorari, on behalf of Windsor with Roberta Kaplan and others attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP and the Stanford Law School Supreme Court Litigation Clinic. The petition argues that Windsor’s case “presents a question of exceptional national importance: the constitutionality of a statute, the Defense of Marriage Act (“DOMA”), that daily affects the lives of thousands of Americans.”

“The Government has declined to defend its constitutionality, but continues to enforce the statute pending resolution by this Court,” they wrote. “Thus, individuals like petitioner continue to suffer serious consequences from the Government’s failure to recognize their lawfully solemnized marriages.”

Three federal courts in three districts have ruled section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, unconstitutional. Judge Barbara Jones, a federal district court judge in New York, struck down the 1996 law last month in Windsor v. United States. The case is on an expedited appeal schedule in the Second Circuit with oral arguments anticipated for late September, but attorneys for Windsor argue that the Supreme Court should hear the matter now.

“In light of the number of decisions and range of analysis presented in recently decided cases, the issue is ready for decision by this Court and no purpose would be served by further delay,” they wrote.

Since the Obama administration announced last year that it would no longer defend DOMA, the Republican-led House of Representatives has taken up the law’s defense through its Bipartisan Legal Advisory Group. The Justice Department and BLAG have asked the Supreme Court to hear DOMA challenges in two other cases in the past month. In the first, Gill v. Office of Personnel Management, a federal appeals court in Boston had ruled DOMA unconstitutional in May, while the second case, Golinski v. Office of Personnel Management, is still on appeal in the Ninth Circuit.

“With Edie’s case and the two others, the high court has before it striking illustrations of the many different harms that DOMA inflicts on many thousands of married same-sex couples all across the country,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, in a statement. “Edie and Thea got married after making a life-long commitment to each other, and it’s just wrong for the government to pretend that they were legal strangers.” 

Windsor and Spyer lived together for more than 40 years in New York City, where Windsor cared for Spyer after she was diagnosed with multiple sclerosis in 1977. The couple married in Canada in 2007, and when Spyer died in 2009, Windsor, who spent her career as an IBM programmer, had to pay more than $363,000 in estate taxes solely because the federal government did not recognize her marriage. As a result, she filed a lawsuit in 2010 that challenged DOMA as a violation of her equal protection rights. 

“Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition,” said Roberta Kaplan in the news release. “Because the District Court’s ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime.”