New York Attorney General Takes Edith Windsor's Side in DOMA Challenge

Posted by Chris Geidner
July 26, 2011 3:15 PM |

Today, New York Attorney General Eric Schneiderman jumped into the ongoing national debate over the federal definition of marriage contained in Section 3 of the Defense of Marriage Act -- supporting the lawsuit filed by Edith Windsor, who was forced to pay a $350,000 estate bill because of the federal government's refusal to recognize Windsor's marriage to a woman.

Windsor's case is one in which the House Republican leadership, through its 3-2 majority on the House Bipartisan Legal Advisory Group, has been been defending DOMA in court challenges since Department of Justice announced in February that it would no longer be defending Section 3 of DOMA in court.

Schneiderman.pngIn a brief filed in the U.S. District Court for the Southern District of New York today, Schneiderman -- representing the legal view of New York -- detailed New York's practice of recognizing "same-sex marriages that were solemnized under the laws of other States or nations, such as plaintiff Edith Windsor's Canadian marriage to Thea Spyer."

He goes on to discuss New York's marriage law itself, writing, "More recently, New York enacted the Marriage Equality Act, which allows same-sex couples to marry in New York. This statute represents the next step along a path on which New York long ago embarked, the path of extending equal treatment under law to same-sex couples."

Digging into the legal dispute, Schneiderman details how "DOMA is an unprecedented intrusion into the power of the states to define marriage." It is here that Schneiderman's brief most clearly echoes the lawsuit brought by the state of Massachusetts against Section 3 of DOMA, with New York's attorney general discussing the Tenth Amendment -- which is not a part of Windsor's lawsuit but was a basis for striking DOMA in the Massachusetts suit brought and won at trial court by Massachusetts Attorney General Martha Coakley (D).

The brief then explains how and why, in New York's view, sexual orientation classifications -- such as DOMA -- should be subjected to heightened scrutiny by courts, taking a similar view to that expressed earlier this year by the U.S. Department of Justice and President Barack Obama. Under Supreme Court equal protection precedents, a law subject to heightened scrutiny is presumed to be to be unconstitutional unless the government can prove otherwise.

Schneiderman, however, goes further than the DOJ analysis, writing, "The Court need not resolve this particular question regarding the appropriate level of scrutiny, both because DOMA also discriminates on the basis of sex, which indisputably requires intermediate scrutiny, and because it fails any level of scrutiny that could be applied here."

The brief, which is signed by Assistant Attorney General Simon Heller, is filed for himself, Scheiderman, Solicitor General Barbara Underwood and Deputy Solicitor General Benjamin Gutman on behalf of the state of New York and concludes that "DOMA does not advance any legitimate governmental interest."

Moreover, they write, "It cannot survive the scrutiny that is warranted because of the groups that it disadvantages and because of the intrusion on an area that is at the heart of state sovereign power. Accordingly, it must be invalidated as a violation of the equal protection component of the Fifth Amendment’s Due Process Clause."

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LAW DORK NOTE: In one of the most interesting passages, Schneiderman explains why the Tenth Amendment and federalism principles are relevant, writing:

Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.

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READ the brief: NYAG-WindsorvUS.pdf

[Photo: Schneiderman]

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