The list of those filing amicus briefs with the U.S. Supreme Court seeking to have the Defense of Marriage Act ("DOMA") continues to grow. Now, New York City has filed a brief seeking a ruling that DOMA is unconstitutional and illegally discriminates against same sex couples. The brief was filed in Windsor v. United States and supports Edith Windsor who was required to pay more than $363,000 in federal estate taxes because DOMA forbids the IRS from recognizing Windsor's fully legal marriage to her late partner of many years. There is no justification for such disparate treatment other than the Christianist religious based goal of punishing gay and lesbian couples for failing to conform to Christianist religious beliefs. Here are excerpts from the Washington Blade on the development:
New York City Mayor Michael Bloomberg and lesbian New York City Council Speaker Christine Quinn have joined the growing choir of individuals calling on the U.S. Supreme Court to overturn the Defense of Marriage Act.
On Wednesday, attorneys representing the City of New York — as well as Bloomberg and Quinn in their official capacities — filed a friend-of-the-court brief asking the justices to take up lesbian Edith Windsor’s challenge to DOMA, known as Windsor v. United States.
Windsor, a New York City widow, had to pay nearly $363,000 in federal estates taxes upon the death of her spouse, Thea Spyer, in 2009 because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.
The 14-page brief calls DOMA “the last remaining obstacle to achieving legal equality between the city’s married couples” while making the case to strike down the anti-gay law.
“Solely because of DOMA, Edith Windsor was required to pay more than $363,000 in federal estate tax on her legal spouse’s estate,” the brief states. “If Ms. Windsor’s spouse had been a man, the marital exemption provided by federal law would have applied and she would not have owed any federal estate taxes at all. As a result of DOMA, thousands of legally married same-sex couples in the New York City are being subjected to this type of disparate treatment because their legal marriages are not recognized under federal law.”
The American Civil Liberties Union, which filed the lawsuit on behalf of Windsor, has already filed a request with the Supreme Court calling on justices to take up the lawsuit and overturn DOMA. Windsor has already seen some success. The U.S. District Court for the Southern District of New York already ruled in her favor and ordered that Windsor be refunded the $363,000 in taxes she had paid.
The brief presents the same question to the Supreme Court that has already been asked in earlier briefs asking justices to consider the anti-gay law: Does Section 3 of DOMA violate the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under state law?
The brief lays out two main arguments why DOMA unfairly impacts New York City: (1) DOMA forces it to be “the unwilling agent” of federally required separate treatment of lawfully married employees and (2) the disparate treatment of legally married couples under DOMA undermines the city’s non-discrimination laws.
“As an employer, the city must identify the gender of the spouses of its lawfully married employees and then single out those employees with a same-sex spouse,” the brief states. “DOMA enforces discriminatory tax treatment of spousal health care benefits. In many other benefit-related matters, the city must either incur the cost and administrative burden of ‘workarounds’ (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or discriminate in its treatment of its married workforce.”
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