Department of Justice requests Supreme Court review of two more DOMA cases
September 12, 2012
Yesterday, the Obama Administration's Department of Justice filed a writ of certiorari to the U.S. Supreme Court requesting that the nation's highest court review two legal challenges to the so-called Defense of Marriage Act, the 1996 law that prohibits federal respect of marriages between same-sex couples. The cases - Windsor v. United States and Pedersen v. Office of Personnel Management - concern DOMA's Section 3, which restricts marriage to different-sex couples.
Windsor's case dates back to November 2010, when the American Civil Liberties Union and a law firm filed suit on her behalf. Windsor, a resident of New York state, had legally married Thea Spyer in Canada in 2007 after the two had lived together as a couple in New York for over 40 years. Two years after the ceremony, in February 2009, Spyer passed away from progressive multiple sclerosis, and she left her estate to Windsor. Because the federal government did not recognize Windsor's marriage to Spyer, Windsor was forced to pay a $363,000 federal inheritance tax. In June, U.S. District Court Judge Barbara Jones found in Windsor v. United States that DOMA is unconstitutional. The Bipartisan Legal Advisory Group - the GOP-majority group that stepped in to defend DOMA in court when the Obama administration's Department of Justice declared DOMA unconstitutional - appealed the ruling.
The Pedersen v. O.P.M. case, initially filed in November 2010 by Gay & Lesbian Advocates and Defenders, concerns several married same-sex couples and widowers in Connecticut, Vermont, and New Hampshire who were denied federal tax, social security, pension and family medical leave protections. The lawsuit argues that Section 3 of DOMA - the section that instates a federal definition of marriage as only a union between different-sex couples - violates the U.S. Constitution's fifth amendment, which promises equal protection under the law. In July, Judge Vanessa Bryant found in Pedersen v. O.P.M. that DOMA is unconstitutional.
The organizations who brought the Windsor and Pedersen cases - the ACLU and GLAD, respectively - have already requested Supreme Court review of their cases. The DOJ's new requests now add to the pile of formal writ of certiorari filings the Supreme Court has received regarding DOMA.
The question now remains which, if any, of the DOMA challenges will be reviewed by the Supreme Court next year. A total of four cases have now received multiple requests over the past few weeks. Gill v. Office of Personnel Management (consolidated with Commonwealth of Massachusetts v. U.S. Department of Health and Human Services) has been requested by the DOJ, BLAG, Massachusetts Attorney General Martha Coakley, and 15 States. Golinski v. O.P.M. has been requested by the DOJ. Windsor v. United States has been requested by the DOJ and the American Civil Liberties Union. Pedersen v. O.P.M. has been requested by Gay & Lesbian Advocates & Defenders and the DOJ.
The flurry of Supreme Court requests makes it likely that the so-called Defense of Marriage Act will be reviewed by the nation's highest court. We urge the Court to agree with the more than half dozen district judges who have found DOMA to be unconstitutional. We look forward to the day when DOMA is struck down once and for all so that married same-sex couples can share in the federal protections and responsibilities provided to all other married couples, their kids, and those who deal with them.