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DOMA headed to the Supreme Court?

James Esseks,
Director, LGBTQ & HIV Project,
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July 16, 2012

Today, we asked the United States Supreme Court to review the ACLU’s challenge to the Defense of Marriage Act on behalf of Edie Windsor. A federal trial court struck down DOMA last month in Edie’s case, holding that it violates the federal constitution.

Asking for Supreme Court review now, even before the federal appeals court decides Edie’s case, is unusual. In the vast majority of cases, the Supreme Court won’t take a case until there is a federal appellate decision, but in rare circumstances, it can reach down into lower courts and pluck cases for earlier review. At this point petitions for Supreme Court review have been filed in two other DOMA cases – GLAD’s Gill v. OPM case, which has been decided by the First Circuit, and Lambda Legal’s Golinski v. OPM case, which, like Windsor v. United States, doesn’t have an appeals court decision yet.

The Court will likely decide the constitutionality of DOMA this coming term, using one or more of these cases as vehicles for addressing the issue. We filed because we believe that Edie’s story is a strong addition to the striking collection of plaintiffs in the Gill case and to Karen Golinski’s story as well. Now the Court has three cases, offering a variety of harms, to choose from.

Edie is an 83-year-old lesbian widow who spent 44 years with her partner and then spouse, Thea Spyer. Over the course of decades, Edie and Thea dealt together with Thea’s multiple sclerosis and the progressive paralysis that it caused, deepening their love and commitment as Thea gradually became a paraplegic. When Thea died, two short years after they finally married in 2007, Edie learned that she owed the IRS $363,000 in estate taxes on her inheritance from Thea. When Edie found out that a straight widow wouldn’t have owed a dime, she decided to challenge DOMA in court. Her case was one of two that prompted the Department of Justice to stop defending the constitutionality of DOMA and instead to acknowledge that it violates the federal constitution.

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There are now over 130,000 married same-sex couples in the United States. DOMA harms each of those couples in a wide variety of ways, since it treats them as unmarried in each of the 1,138 different contexts in which federal statutes determine protections or obligations based on marriage. Edie’s story shows one of those harms – the marital exemption in the estate tax – in the context of their lifelong commitment, sacrifice, and love.

Now Edie and Thea’s story, which has already inspired so many, may just inspire the Supreme Court as well. Here’s hoping!

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