I've made no secret of my view that the federal Defense of Marriage Act - and, in fact, all anti-LGBT legislation - is unconstitutional and nothing short of blatant religious based discrimination. Yes, there are equal protection deficiencies too, but the over riding goal of DOMA and anti-gay marriage laws and constitutional amendments is to punish those who do not abide by conservative Christian beliefs. Anyone who tries to justify these laws for any other reason is lying. In her lawsuit, Edie Windsor (pictured at left) is challenging the constitutionality of Section 3 of DOMA in her capacity as the executor of her late same-sex spouse’s estate, seeking a refund of $363,053.00 of federal estate taxes that – but for DOMA – the estate would not have paid due to the marital deduction. With the Obama administration having taken the position that it will not defend DOMA because it is believed to be unconstitutional, defense of the Christianist law is in the hands of the GOP House Committee's lawyers. Now, the DOJ has upped the ante and is now on record in support of Windsor's motion for summary judgment and in opposition to John Boehner's motion to dismiss her case. The new DOJ memorandum of law can be viewed here. Here are highlights from MetroWeekly on the development:
On Aug. 19, DOJ went a step further, telling a judge in the Southern District of New York that Edith Windsor -- who is seeking a refund of the more than $350,000 estate tax bill that she had to pay because her marriage to her deceased wife, Thea Spyer, was not recognized by the federal government -- should be granted that refund because DOMA's federal definition of marriage is unconstitutional.
n Windsor's case, DOJ additionally was responding to a request by Windsor's lawyers that her case be decided on the law with no need for a trial and that Windsor -- represented by the American Civil Liberties Union and Paul, Weiss, Rifkind, Wharton & Garrison LLP -- accordingly be granted the refund she is seeking.
In concluding its brief filed on Friday in Windsor's case, DOJ -- led by Assistant Attorney General Tony West and signed by DOJ senior trial counsel Jean Lin -- argues, "Section 3 of DOMA fails heightened scrutiny, and this Court should deny the motions to dismiss Plaintiff's constitutional claim and grant Plaintiff's motion for summary judgment."
The U.S. Supreme Court has not made a determination about the level of scrutiny to apply to sexual orientation classifications, even in the two cases in which it struck down anti-LGBT laws -- Romer v. Evans and Lawrence v. Texas. On Feb. 23, though, Attorney General Eric Holder detailed in a six-page letter his and President Barack Obama's determination that some level of heightened scrutiny should apply.
DOJ's Aug. 19 brief then lays out its case for heightened scrutiny to apply to sexual orientation classifications, arguing that "careful consideration of the factors the Supreme Court has identified as relevant to the inquiry demonstrates that classifications based on sexual orientation should be subject to heightened scrutiny."
In addition to DOJ's filing, Windsor's lawyers also filed a response to BLAG, arguing in part that DOMA should be found unconstitutional -- even should the court decide that rational basis applies.