- The Washington Times - Thursday, October 18, 2012

A federal appellate court in Manhattan said the federal government’s marriage law is unconstitutional, raising the likelihood that gay marriage will end up before the Supreme Court.

Plaintiff Edith Windsor was wrongly required to pay some $363,000 in federal estate taxes after her longtime partner, Thea Spyer, died, the 2nd U.S. Circuit Court of Appeals ruled, 2-1, Thursday.

Instead, the court said, the Defense of Marriage Act (DOMA) prevented Ms. Windsor, 83, from being treated as a spouse even though she and Ms. Spyer had legally married in Canada in 2007.

If Ms. Windsor had been married to “Theo” rather than “Thea,” she would have owed nothing to the federal government, argued her lawyers, including those with the American Civil Liberties Union (ACLU).

“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they are legal strangers,” James Esseks, director of the ACLU project for gay, lesbian, bisexual and transgender persons, said Thursday.

The appellate court concluded that DOMA “was not substantially related to an important government interest” and instead violated Ms. Windsor’s equal-protection rights under federal law.

For instance, the defense argument that DOMA preserves “a traditional understanding of marriage” is “not an exceedingly persuasive justification for DOMA,” Chief Judge Dennis Jacobs and Christopher F. Droney wrote for the majority, noting that anti-sodomy laws have been struck down despite traditional views that the practice was immoral.

Also, because states decide whether to permit same-sex marriage, “DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman,” the majority said.

Notably, the 2nd Circuit Court agreed with the plaintiffs that, as part of a discrete community, same-sex couples deserved “intermediate scrutiny,” which raises the bar for defenders of DOMA to make their case to uphold the law.

The Bipartisan Legal Advisory Group of the U.S. House of Representatives is defending DOMA, which passed in 1996 with broad bipartisan support and was signed by President Bill Clinton. Former Solicitor-General Paul Clement is leading the defense team. Groups supporting DOMA include many state attorneys general and traditional-values groups.

The gay-marriage issue is expected to reach the Supreme Court. Several cases are vying for attention, and in September, Justice Ruth Bader Ginsburg told University of Colorado-Boulder students that “I think it’s most likely that we will have that issue before the court toward the end of the current term.”

In its petition for a high-court hearing, Gay and Lesbian Advocates and Defenders argued that its federal case against DOMA, Pedersen v. Office of Personnel Management, should receive immediate review because the case raises “a question of national importance,” plaintiffs’ families and children are suffering under DOMA, and there are conflicting federal decisions on DOMA’s constitutionality.

The section of DOMA under litigation is the one that says that for purposes of federal benefits, the United States defines marriage as the union of one man and one woman, and defines spouse, husband and wife accordingly.

New York began performing and recognizing gay marriages in 2011.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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