BLAG's brief cites conflicts among the nation's U.S. appeals courts in unsuccessfully arguing that the case accepted by the U.S. Supreme Court, U.S. vs. Windsor, should not be reviewed, and a separate DOMA case, Golinski vs. OPM, out of California, should be reviewed.
The brief said decisions by appeals courts in Boston and New York declaring DOMA unconstitutional conflicted with decisions by the 11 other U.S. appeals courts in the country, at least on how they interpreted precedent.
A brief filed by the Obama administration largely concentrates on the effects of DOMA's section 3, rather than technical arguments.
"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in the brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws."
In the DOMA case to be heard by the Supreme Court, Edith Windsor, now 83, had married her same-sex partner of 40 years in Canada in 2007. When her partner, Thea Spyer, died in 2009 of multiple sclerosis, she left her estate to Windsor.
As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes." The Internal Revenue Service denied the claim because Windsor is not a "spouse" under DOMA's Section 3 and thus not a "surviving spouse" within the meaning of the federal estate tax statute.
Windsor then filed suit in Manhattan challenging Section 3's constitutionality, saying it violated the equal protection guarantee of the Fifth Amendment.
There is no guarantee the Supreme Court will decide the constitutionality of DOMA.
In agreeing Dec. 7 to hear argument on section 3, the justices said in addition to arguing on whether the act violates the Constitution's equal protection clause, "the parties are directed to brief and argue the following questions: Whether the executive branch's agreement with the court below that DOMA is unconstitutional deprives this [Supreme] Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has [constitutional] Article III standing in this case."
Similarly, in its order accepting the Prop 8 case, the justices said, "In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, section 2 of the Constitution in this case."
In order to have "standing," or the right to challenge a law or action, a plaintiff must show he or she was harmed by the law or action.
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