N.Y. Attorney General Challenges Constitutionality of Defense of Marriage Act

July 26, 2011

In papers filed in the case of Windsor v. United States, Attorney General Eric T. Schneiderman challenged the constitutionality of the federal Defense of Marriage Act (“DOMA”), which redefined marriage for federal purposes to exclude same-sex unions that are valid under state law. The papers — filed in the U.S. District Court for the Southern District of New York — ask the federal court to accept the Attorney General’s friend-of-the-court brief, which argues that DOMA violates same-sex couples’ right to equal protection under the law as required by the U.S. Constitution. This legal action, which follows Attorney General Schneiderman’s pledge last summer to join the court battle over DOMA, follows the historic enactment of the Marriage Equality Act of 2011.

“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,” said Attorney General Schneiderman. “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.”

Schneiderman filed the papers in federal court in support of the plaintiff’s motion for
summary judgment in the case of Windsor v. United States.The plaintiff, Edie Windsor, was married in Canada in 2007 to her partner, Thea Spyer, who died two years later.

Following Spyer’s death, the federal government refused to acknowledge the couple’s
marriage under DOMA and taxed the resulting inheritance accordingly. Windsor then filed suit, challenging the constitutionality of DOMA and seeking a refund of the estate taxes she was forced to pay as a result of the federal government’s refusal to recognize her marriage.

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.

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