An elderly New York woman petitioned the US Supreme Court [official website] on Monday to hear her challenge to the Defense of Marriage Act (DOMA) [text; JURIST news archive]. Edith Schlain Windsor, 83, successfully sued the US government [complaint, PDF] in the US District Court for the Southern District of New York (SDNY) [official website], which in June ruled on summary judgment that under a rational basis standard [Cornell LII backgrounder] of judicial scrutiny DOMA is unconstitutional [JURIST report] as an infringement on Fifth Amendment equal protection guarantees [Cornell LII backgrounder]. Even though the case is currently under appeal to the US Court of Appeals for the Second Circuit [official website], Windsor filed a petition for writ of certiorari before judgment [petition, PDF], arguing that the Supreme Court should hear her case because it presents a constitutional question of exceptional national importance and the lower federal courts are in significant disarray over DOMA's constitutionality, and because Windsor suffers from a serious heart condition and is legally entitled to receive during her lifetime the benefit of the SDNY ruling, which is automatically stayed pending appeal and challenges. Windsor and Thea Spyer obtained a legal same-sex marriage [JURIST backgrounder] in 2007 after being engaged for 40 years. Spyer, who suffered from multiple sclerosis, died just two years later, leaving all of her property to Windsor. Windsor challenged the assessment of over $363,000 in federal estate taxes on property transferred to her upon her wife's death—taxes that would not have been assessed on such a transfer between married partners of opposite sex. Oral arguments before the Second Circuit in Windsor v. United States are scheduled for September 24.
Windsor's Supreme Court petition is the fourth in recent weeks to challenge the constitutionality of DOMA. Last week a lesbian couple filed a lawsuit in the US District Court for the Central District of California [official website] in a DOMA challenge that seeks to achieve for gay and lesbian couples the same federal immigration rights afforded to heterosexual couples [JURIST report] under the Immigration and Nationality Act [materials]. Also last week 132 members of the US House of Representatives [official website] filed an amicus brief [JURIST report] arguing that statutory classifications based on sexual orientation should be subject to heightened judicial scrutiny, and that DOMA should be overturned as unconstitutional under any level of judicial scrutiny. The brief was filed in the appeal of Karen Golinski v. Office of Personnel Management, the landmark case in which the US District Court for the Northern District of California [official website] ruled that DOMA is unconstitutional [JURIST report]. Last month 10 US senators filed their own amicus brief in the case, arguing in the opposite [JURIST report] that the federal government had a legitimate interest in creating a uniform federal definition of marriage to "[avoid] massive legal uncertainty."