The Defense of Marriage Act is due for a two-pronged attack on Tuesday, as two separate organizations and sets of lawyers, representing different plaintiffs, plan to file lawsuits in federal court challenging the federal definition of marriage.
The Gay and Lesbian Advocates and Defenders (GLAD) plans to file a lawsuit in Connecticut challenging DOMA’s Section 3, which defines "marriage" and "spouse" in federal law as being limited only to opposite-sex couples. The plaintiffs are to include couples from several New England states with marriage equality, including Connecticut, New Hampshire and Vermont. [READ Metro Weekly's post-filing follow-up: "GLAD Expands DOMA Challenge to Include State, Private Company Consequences of DOMA."]
Meanwhile, in New York City, the American Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP plan to file a lawsuit on behalf of Edith Windsor, the widow of Thea Spyer. Windsor was forced to pay a $350,000 estate bill because of the federal government’s refusal to recognize Windsor's marriage to Spyer. [READ Metro Weekly's post-filing follow-up: "ACLU's DOMA Challenge Brings Marriage Questions to NYC."]
The GLAD case is modeled after a similar challenge the organization brought in Massachusetts, which resulted in U.S. District Court Judge Joseph Tauro ruling in July that the marriage definition was unconstitutional as applied to several same-sex couples who had been legally married in Massachusetts.
The New York City couple, whose 2007 wedding in Toronto was featured in The New York Times, were the subject of a documentary, Edie & Thea: A Very Long Engagement. New York recognizes same-sex marriages performed legally in other jurisdictions for limited purposes.
Roberta Kaplan, a partner at Paul Weiss who is working on the case "100 percent pro bono," spoke with Metro Weekly on Monday night about Windsor’s lawsuit, summing the case up by saying, "If Thea were Theo, she would have been able to pass her estate to Edie tax-free."
Kaplan presents the facts succinctly.
"I have an 81-year-old client, and $350,000 is a hell of a lot of money -- a huge amount of money that she paid in violation of the Constitution," Kaplan said. "My client had to pay the government, and she wants her money back.
"What we’re seeking in the case is a check back -- with interest."
Asked about the comparison between the New York case and the GLAD case in Connecticut, Kaplan said, "I think the cases complement each other very well."
The GLAD case will feature several plaintiffs, including lead plaintiffs Joanne Pedersen and Ann Meitzen of Connecticut, who the GLAD news release about the case details "have been together for 12 years, and were married in 2008."
Pedersen is retired from the Department of Naval Intelligence, according to the release and is unable to put Ann, who has serious and chronic lung conditions, on her health insurance plan. Other plaintiffs in the case challenge the inability to receive leave under the Family and Medical Leave Act, Social Security death and other survivor benefits, as well as other differential treatment resulting from DOMA’s definition of marriage.
Regarding the legal theories of the cases, Kaplan said of Windsor's case, "It's about a place [New York] where the marriage is recognized, so it's similar to that theory [pursued by GLAD]."
But, "[b]ecause I think these cases come up in all sorts of different contexts," Kaplan said that Windsor's case was a "dramatic" example of the discrimination couples face from DOMA.
"I think this case really gets people in the gut," she said. "Everyone can see themselves in the position Edie found herself in" -- noting again, however, that solely because Windsor was married to a woman and not a man she faced "a $350,000 tax bill."
Kaplan, who has worked with the ACLU seeking marriage equality in New York under state law, said of this effort, "The best way, I think, to move ahead is to play on all the playing fields at the same time -- including in state and federal court."
Asked if the ACLU case figures into those efforts to gain marriage equality in the state, she said, "In the bigger picture, I think this case is really part of that -- but ... it's not a part of the state legislative battle."
When asked about the questions that have been raised regarding the Department of Justice's defense of DOMA and the "Don't Ask, Don't Tell" law in court, Kaplan at first demurred.
Then, of Windsor's case, she said, "What I do think is true is that in this case the Department of Justice is going to have a very hard time coming up with a reason to give a judge in the Southern District of New York why Edie and Thea should be treated differently than if they were Edie and Theo."
[Photo of Windsor and Spyer from Edie & Thea: A Very Long Engagement. Trailer for the documentary, which is to be released on DVD later this month, is below.]