The stage is now set for the U.S. Supreme Court to decide whether the Defense of Marriage Act's definition of marriage as an institution that is the exclusive domain of heterosexuals violates the Constitution.
Lawyers for Edith Windsor filed their brief with the court on Feb. 26, arguing that DOMA's exclusion of same-sex married couples from federal benefits should be struck down because it violates the guarantee of equal protection under the law.
The attorneys, led by counsel of record Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, say that §3 of the act should be struck down regardless of whether the justices accept their argument that heightened scrutiny applies to discrimination on the basis of sexual orientation, or the court elects to apply the less exacting standard of "rational basis" review.
"DOMA is impossible to reconcile with the promise of impartial governance that the Constitution's guarantee of equal protection extends to all of our Nation's citizens," the lawyers write in United States v. Windsor, 12-307.
The brief is Windsor's counter to the Republican majority leadership in the House of Representatives, which decided in 2010 to defend DOMA in court after the Obama administration took the rare step of saying it would no longer defend the law in court.
The House's Bipartisan Legal Advisory Group (BLAG) filed a brief four weeks ago urging the high court to apply rational basis review and defending the act as a legitimate exercise of federal power that still leaves the prevailing definition of marriage to the states ( NYLJ, Feb. 1).
Kaplan and her fellow attorneys, including James Esseks of the American Civil Liberties Union, are on a winning streak for Windsor, who sued after she was forced to pay $363,000 after the 2009 death of Thea Spyer, whom she married in Canada in 2007. Had the two been a heterosexual couple, the bill on Spyer's estate would have been zero.
In June 2012, Southern District Judge Barbara Jones struck down §3 without having to decide whether heightened scrutiny applied, finding that the section in any event failed rational basis review ( NYLJ, June 7, 2012).
The U.S. Court of Appeals for the Second Circuit upped the ante in October, when a divided court found that heightened scrutiny should be applied to discrimination based on sexual orientationand the statute failed that test ( NYLJ, Oct. 19).
BLAG's brief in January, filed by Paul Clement of Bancroft, faults the Second Circuit for applying heightened scrutiny.