Third DOMA Petition Reaches High Court

by Nicole Flatow

The American Civil Liberties Union has asked the U.S. Supreme Court to hear a third case challenging the constitutionality of the Defense of Marriage Act, this one involving an 83-year-old appellant with a life-threatening heart condition who was forced to pay $363,000 in federal estate taxes when her spouse passed away.

Because the constitutionality of DOMA is already before the high court in two other petitions, the ACLU has asked the Supreme Court to bypass appeals court review in Windsor v. United States and directly review U.S. District Judge Barbara Jones’ holding that Section 3 of DOMA unconstitutionally discriminates against same-sex married couples.

All three opinions up for review by the high court found that Section 3 was unconstitutional, but as Chris Geidner explains for BuzzFeed, the analysis in each case is different.

In the Windsor case, Judge Jones, of the Southern District of New York, held that Section 3 was discriminatory even under the lowest level of constitutional scrutiny that applies to equal protection cases: rational basis review. In contrast, the two other opinions now on appeal found that some form of heightened scrutiny should apply to cases involving sexual orientation discrimination.   

The ACLU argues the Supreme Court should review the Windsor case because it “could affirm the decision below without reaching the question of whether a more stringent standard of review should apply when the Government discriminates on the basis of sexual orientation.”

So long as the appeal is pending, appellant Edith Windsor cannot receive a refund of the $363,000 she paid in estate taxes when her late spouse passed away, because of an automatic stay of enforcement. If the Supreme Court has not yet acted on the case, it will go before the U.S. Court of Appeals for the Second Circuit in September.