On November 9, 2010, a woman serving as the executor of the estate of her late same-sex spouse filed a lawsuit under 42 U.S.C. § 1983 and 26 U.S.C. § 7422 against the United States in the U.S. District Court for the Southern District of New York. The plaintiff, represented by the national and state ACLU and by private counsel, asked the court for injunctive and monetary relief, alleging a violation of equal protection. Specifically, the plaintiff claimed that operation of Section 3 of the Defense of Marriage Act (DOMA) to require her to pay federal estate tax, a tax from which opposite-sex spouses are exempt, on the estate of her same-sex spouse violated the equal protection component of the due process clause of the Fifth Amendment.

The plaintiff first met her late spouse in 1963, in New York City, and entered into a committed relationship with her shortly thereafter. On 1993, the couple registered as domestic partners in New York City, and in 2007, with the late spouse’s health failing, the couple decided to marry in Canada, where same-sex marriage was legal. In 2009, plaintiff’s late-spouse passed away, and plaintiff was forced to pay $363,053 in federal estate tax, because under DOMA she did not qualify for the unqualified marital deduction. Plaintiff decided to commence a suit seeking to enjoin DOMA and to receive a refund of the tax she had been made to pay under it.

On February 25, 2011, the Department of Justice, representing the defendant, notified the court that it had come to the conclusion that DOMA is unconstitutional and that it would thus cease defending it. In response, on April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) moved to intervene in defense of the act, and the Court (Magistrate Judge James C. Francis) granted its motion on June 2, 2011.

On June 24, 2011, plaintiff moved for summary judgment, and on August 1, BLAG moved to dismiss plaintiff’s complaint.

On June 6, 2012, the Court (Judge Barbara S. Jones) addressed both motions, denying BLAG’s motion to dismiss and granting plaintiff’s motion for summary judgment. Windsor v. United States, No. 1:10-cv-08435, 2012 WL 2019716 (S.D.N.Y. June 6, 2012). The Court found as a threshold matter that plaintiff had standing to pursue the suit because the State of New York recognized same-sex marriages legally conducted in other jurisdictions in 2009, and thus plaintiff's Canadian marriage was recognized under New York law. It went on to find that there was no rational basis for Section 3 of DOMA, and declared that section unconstitutional and awarded plaintiff the $363,053 refund she sought.

BLAG appealed the District Court's decision to the Court of Appeals for the Second Circuit on June 8, 2012, and the Department of Justice appealed on June 14. The plaintiff filed a motion to expedite the appeal, and on June 22, 2012 the Court of Appeals granted the motion and scheduled oral argument for the week of September 24, 2012.

On July 16, 2012, the plaintiff filed a petition for a writ of certiorari in the Supreme Court before judgment in the Court of Appeals, citing her age and failing health and the number of other petitions before the Court on the same issue (e.g. Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill , No. 12-13 [PB-MA-0006], Department of Health & Human Services v. Massachusetts, No. 12-15 [PB-MA-0005], Office of Personnel Management v. Golinski, No. 12-16 [PB-CA-0031]) as considerations.

On October 18, 2012, a three-judge panel of the Second Circuit affirmed the District Court's judgment in a 2-to-1 decision. Windsor v. United States, No. 12-2335 (2d Cir. Oct. 18, 2012). The majority, in an opinion penned by Chief Judge Dennis G. Jacobs, held that classifications based on sexual orientation should be subject to intermediate scrutiny, and that Section 3 of DOMA could not withstand that standard of review. They declined to address whether Section 3 would pass muster under a lower standard. Judge Chester J. Straub, in dissent, would have held that rational basis review was the appropriate level of scrutiny and that DOMA passed it.

On December 7, 2012, the Supreme Court granted certiorari review, ordering briefing on the questions (1) whether DOMA was constitutional, under the Equal Protection Clause, (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case. Argument is scheduled for March 27, 2013. On December 11, the Supreme Court appointed Vicki Jackson, a professor of constitutional law at Harvard Law School, as an amicus curiae to argue questions (2) and (3).

On December 27, BLAG sought certiorari in its own right to ensure that the Supreme Court can still rule on Section 3 of DOMA in the event that the Supreme Court finds that it lacks jurisdiction to rule due to the DOJ's agreement with the 2nd Circuit. That petition is pending.

- 03/18/2013


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