February 11, 2013 Articles

Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA

The U.S. Supreme Court seems ready to make a historic ruling.

By Caitlin Sandley and Stanford Moore – February 11, 2013

In New York City during 1963, Thea Spyer and Edie Windsor met and fell in love. After remaining in a committed relationship for 30 years, the couple registered as domestic partners in New York City; they later married in Canada during 2007. In February 2009, Spyer died and left her estate to Windsor. Had the couple been heterosexual, the IRS would have allowed an unlimited spousal marital-tax exception. The IRS, however, levied a $363,053 tax on Windsor because section three of the Defense of Marriage Act (DOMA) defines “marriage” only as a legal union between a man and a woman and a “spouse” as only a person of the opposite sex. 1 U.S.C. § 7. DOMA blocks homosexuals from receiving federal marriage benefits; accordingly, DOMA precluded the IRS from recognizing Windsor as a spouse. Windsor, praying for the same treatment as her peers, challenged DOMA in the U.S. District Court for the Southern District of New York. State law, however, determines whether persons are married at the time of death. Windsor had standing to challenge DOMA because New York law recognized Windsor's marriage at the time of Spyer’s death.

Prior to the district court’s ruling in Windsor's case, U.S. Attorney General Eric Holder announced to Congress that the Department of Justice would no longer defend section three of DOMA. Mr. Holder recommended that courts analyze classifications based on sexual orientation under intermediate scrutiny rather than under rational basis. Though the United States remained a defendant in Windsor, the Bipartisan Legal Advisory Group (BLAG) intervened as a defendant, which tax dollars continue to fund. At the urging of the speaker of the House, Representative John Boehner, the U.S. House of Representatives convened BLAG to defend DOMA after the Obama administration announced it would not defend DOMA.

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