The federal Defense of Marriage Act is rife with "irrationality" that disadvantages same-sex couples in concrete ways, such as imposing tax penalties, and in more subtle ways that its drafters never envisioned, said Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who will argue for the statute's invalidation before the U.S. Supreme Court in March.
Kaplan made her comments yesterday during a session on the future of DOMA at the New York State Bar Association's annual meeting at the Hilton New York.
Roberta Kaplan at yesterday's NYSBA meeting
She said the statute treads on the basic rights that should be afforded to all couples, heterosexual and homosexual, through the institution of marriage.
"The issue in this case is whether there is a sufficient federal interesta federal interest" in treating married same-sex couples as though they were not married, "essentially nullifying their marriages, for the purposes of all federal law," Kaplan said.
On March 27, Kaplan will argue in United States v. Windsor that the statute is unconstitutional on several grounds, including its imposition of an estate tax on same-sex couples that does not apply to heterosexual couples.
Kaplan represents Edie Windsor, who married her partner Thea Spyer in Canada in 2007 after the couple had lived together for more than 40 years. Spyer died in 2009 and left her estate to Windsor.
Federal tax statutes would allow the inheritance to pass untaxed from the estate of Spyer to Windsor if they were a married heterosexual couple, but Windsor faces a federal estate tax bill of $363,000and more than $600,000 over allbecause the federal government does not recognize same-sex marriage.
Southern District Judge Barbara Jones (NYLJ, June 7, 2012) and a panel of the U.S. Court of Appeals for the Second Circuit (NYLJ, Oct. 19, 2012) both found that DOMA discriminates against same-sex couples.
Kaplan also will argue in Windsor that the definition of "marriage" under §3 of DOMA as "only a legal union between one man and one woman as husband and wife" violates the Fifth Amendment guarantee of equal protection under the law for legally married same-sex couples.