A.G. Schneiderman Urges Second Circuit To Affirm Ruling That Federal Defense Of Marriage Act Is Unconstitutional

Brief Argues DOMA Impermissibly Relegates Same-Sex Married Couples to Second-Class Status

Schneiderman: My Office Will Fight Every Day to Defend the Fundamental Guarantee of Equal Protection for All New Yorkers

NEW YORK – In a friend-of-the-court brief filed in the case of Windsor v. United States today in the U.S. Court of Appeals for the Second Circuit, Attorney General Eric T. Schneiderman, together with the Attorneys General of Vermont and Connecticut, challenged the constitutionality of the federal Defense of Marriage Act (“DOMA”), which rejects same-sex marriages valid under state law for all federal purposes. The brief argues that DOMA violates same-sex couples’ right to equal protection under the law as required by the U.S. Constitution and should be viewed with great skepticism because it is an unprecedented intrusion on the authority of States to regulate marriage and enhance equality for their citizens. 

“The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution, and improperly intrudes on the traditional role of states in regulating marriage and promoting equality,” Attorney General Schneidermansaid. “The State of New York has long recognized out-of-state, same-sex marriages, and the enactment of the Marriage Equality Act last year further cemented our state’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”

Attorney General Schneiderman filed the brief in the case of Windsor v. United States. The plaintiff, Edie Windsor, was married in Canada in 2007 to her partner, Thea Spyer, who died two years later. Following Spyer’s death, the federal government refused to acknowledge the couple’s marriage under DOMA and taxed the resulting inheritance accordingly. Windsor then filed suit, challenging the constitutionality of DOMA and seeking a refund of the estate taxes she was forced to pay as a result of the federal government’s refusal to recognize her marriage. United States District Judge Barbara S. Jones of the Southern District of New York held that DOMA’s rejection of Windsor’s valid marriage was unconstitutional because it serves no legitimate government interest. Another federal appeals court, the First Circuit in Boston, reached a similar conclusion about DOMA.

In the amicus curiae brief, Attorney General Schneiderman argues that in rejecting same-sex marriages, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He also argues that the statute improperly intrudes on the traditional role of states in regulating marriage and domestic relations generally; that it discriminates based on sex and sexual orientation and therefore must be subjected to heightened scrutiny; and that DOMA fails any level of scrutiny because it does not advance any legitimate federal interest.

The United States Supreme Court has been asked to review several decisions that have found DOMA unconstitutional — including the decision of Judge Jones in Windsor, the decision from the federal appeals court in Boston, and federal district court decisions from California and Connecticut — and may decide as early as October of this year whether it will grant one or more of those requests.

Oral arguments in the case are set for September 27, 2012.

See the full brief attached.

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