Lawyers for Edith Windsor file brief ahead of March 7 hearing that urges justices to find anti-gay legislation unconstitutional
Edith Windsor, the New York widow at the centre of a US supreme court legal challenge to the act that bans federal recognition of same-sex marriage, put her case on Tuesday in a brief arguing that the law contributes to the “pervasive history of discrimination” experienced by gay people in the US.
Windsor, 83, and her long-term partner, Thea Spyer, married in Canada in 2007, after Spyer was diagnosed with multiple sclerosis. When Spyer died two years later she left everything to Windsor, her partner of 44 years, but because the marriage was not recognised under federal law, Windsor was required to pay $363,000 in federal estate taxes. She requested a refund from the government but her request was rejected because of the Defense of Marriage Act (Doma).
In her brief to the court, Windsor’s legal team argues that laws like Doma that classify people based on their sexual orientation should be subjected to “heightened scrutiny”, a standard which calls on the court to presume that anti-gay legislation is unconstitutional and asks the government to provide a strong explanation for the law in question.
Windsor’s lawyers wrote: “As this court has already recognized, laws burdening lesbians and gay men that were ‘once thought necessary and proper’ may in fact ‘serve only to oppress’.”
The brief notes that “gay men and lesbians have experienced a pervasive history of discrimination” and that “as a result lesbians and gay men have confronted discrimination at the hands of both government and private actors”.
On Friday, the Obama administration also filed a brief in the case with a similar argument that laws targeting individuals based on their sexual orientation should face additional scrutiny by courts reviewing them. In it, solicitor general Donald Verrilli argued the law is unconstitutional because it violates “the fundamental guarantee of equal protection”.
GOP members of the Bipartisan Legal Advisory Group (Blag), who have urged that Doma be upheld, have argued that gay-rights issues would be better left to the democratic process. One of the main reasons put forward by Blag in favour of Doma is that it encourages “responsible procreation” in that, because heterosexual couples can conceive accidentally, traditional marriage is in place to encourage couples to marry and rear children in stable relationships.
Windsor’s brief says that none of the arguments put forward by Blag members would pass the test of heightened scrutiny. It also argues that Doma violates the constitution under any rational review, and that it serves no legitimate federal interest.
It states: “Given that other courts had been ‘unable to find even a rational connection between Doma and encouraging responsible procreation and child-rearing” the court of appeals held that Doma is not “substantially related” to that goal.
Windsor’s case, which is supported by the American Civil Liberties Union and the New York Civil Liberties Union is one of two due to be heard in the Supreme Court next month on the issue of gay marriage. The other is the constitutional challenge on Proposition 8, the 2008 California that allowed same-sex marriages in the state that was later overturned.
The court has scheduled to hear oral arguments in the case, United States v Windsor, on March 27.