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BREAKING: Edie Windsor petitions Supreme Court to hear her DOMA challenge

DOMA trials Windsor

By Scottie Thomaston

Today, Edith Windsor, the 83 year old widow who is the plaintiff in Windsor v. USA (filed by the ACLU and the NYCLU), petitioned the Supreme Court for certiorari, asking them to review her challenge. The Supreme Court has already received petitions in two other cases – Golinski v. OPM and Gill v. OPM/Massachusetts v. HHS, with both the DOJ and the House Republicans, through the Bipartisan Legal Advisory Group (BLAG) petitioning for review in the latter case.

Via the Huffington Post, which first reported the story:

Roberta Kaplan, Windsor’s lawyer, said that Monday’s petition to speed the lawsuit’s movement through the courts was due in part to her client’s age and health. Windsor has a heart condition, and on June 13, after the Bipartisan Legal Advisory Group filed a notice of appeal, Windsor filed a motion to expedite the latest appeal, citing her poor health and a desire to “see the constitutional claim of her spouse’s estate resolved during her lifetime.”

In the petition to the court, the lawyers argued that the case is a straightforward example of how DOMA financially impacts married same-sex couples.

Windsor’s case has been decided at the district court level, where Section 3 of DOMA was struck down as unconstitutional. It is on appeal to the Second Circuit Court of Appeals. Like the Justice Department’s petition in Golinski, there is not yet a decision by an appeals court in Windsor.

The Huffington Post spoke to Windsor:

Windsor said she was thrilled about how wide-reaching the implications of her case could be for other same-sex couples. But her first reaction was, “I need to tell Thea immediately,” she recalled. “So I walked around, looking at the pictures and I said, ‘Oh honey, look what’s happening.'”

When the Supreme Court begins its term with its first conference on September 24, it will take up these petitions, likely that week or the beginning of October.

UPDATE: Geidner has more:

The ACLU’s move marks a major step in the ongoing question of whether, how and when the Supreme Court might take the high-stakes case. The ACLU’s writ of certiorari is the fourth such petition filed in the past three weeks. The ACLU’s move also brings to the foreground a legal question the Administration has sought to avoid: Whether DOMA should be struck down as unconstitutional even if not subjected to the same “heightened scrutiny” that applies to cases involving race and sex.

In today’s filing, the ACLU argues that the case presents “a question of exceptional national importance,” stating, “DOMA has been held unconstitutional by federal courts in three circuits. The Government has declined to defend its constitutionality, but continues to enforce the statute pending resolution by this Court. Thus, individuals like [Windsor] continue to suffer serious consequences from the Government’s failure to recognize their lawfully solemnized marriages.”

UPDATE 2: The petition is here on Scribd, via Kathleen:Windsor Cert Petition

Image courtesy of Freedom to Marry


  • 1. Str8Grandmother  |  July 16, 2012 at 9:24 am

    Whoop! Whoop!!
    No WAY is the Supreme Court going to be able to wiggle out of our complaints. No WAY.
    I HOPE this poor woman gets vindicated before she dies, I HOPE so.

  • 2. Bob  |  July 16, 2012 at 9:32 am

    die DOMA die!!!!!!

  • 3. Bob  |  July 16, 2012 at 9:39 am

    The ACLU’s move also brings to the foreground a legal question the Administration has sought to avoid: Whether DOMA should be struck down as unconstitutional even if not subjected to the same “heightened scrutiny” that applies to cases involving race and sex.

  • 4. Bob  |  July 16, 2012 at 9:43 am

    pretty clear case,,, getting the wording right,,,, and the urgency of the matter,,,,,, so important,,

    remember that case of the bishop,,, who was found guilty and remanded in jail,,, the courts where speeding up the case,, because of pressure from the powers to be,, who thought it a travesty that he should spend any time at all behind bars,,, if the courts could fast track that case,,,,, surely to God they could do the right thing here,,,,,,,, for Edith,,, bless her for bringing this case forward,,,,,

  • 5. Gregory in SLC  |  July 16, 2012 at 9:51 am

    I never tire readying their story…a sweet love story that continues, echos the feelings I have for my dear hubby…working and crying…

    Windsor said she was thrilled about how wide-reaching the implications of her case could be for other same-sex couples. But her first reaction was, “I need to tell Thea immediately,” she recalled. “So I walked around, looking at the pictures and I said, ‘Oh honey, look what’s happening.’”

  • 6. davep  |  July 16, 2012 at 10:11 am

    Yeah. I admit that I seem to have been developing a bit of a 'thick skin' recently, perhaps as a sort of coping mechanism. But that quote got to me. I am so grateful for the immense amount of love brought into this world by people like Edith and Thea.

  • 7. Gregory in SLC  |  July 16, 2012 at 10:21 am

    relate to the "thick-skin/coping" syndrome!

  • 8. goldentriangleglbt  |  July 16, 2012 at 11:18 am

    Again I have to applaud you guys and gals, You are providing such a service to all of us all over the U.S. Trial Tracker has Impressed some of the most ardent legal minds I know. I refer my blog readers to your page over and over again. I only have one point that I think you can explain better. That is "Suspect Class" Designation. I am pretty smart but no attorney. Now I know that the request has been made on the 9th district case. perhaps you could explain further the ramifications of that classification? Who rules it as a suspect class? Does this Suspect Classification set a precedent for other cases involving GLBT issues such as prop8 or other gay marriage legislation? I will be looking forward to your response and passing it along as always.

  • 9. Prop 8 Trial Tracker &raq&hellip  |  July 16, 2012 at 11:42 am

    […] BREAKING: Edie Windsor petitions Supreme Court to hear her DOMA challenge […]

  • 10. Scottie Thomaston  |  July 16, 2012 at 12:25 pm

    Apologies for not explaining it well.

    All laws classify groups in some way. But laws that classify minority groups (like AAs and women) are considered "suspect" because generally when you classify those groups for purposes of law, they tend to work against those minority groups. So for example there's a long history of racist and sexist laws.

    Right now, laws that classify gays and lesbians aren't considered "suspect" so gays and lesbians aren't yet considered a "suspect class." The Justice Department and some of the challengers of DOMA are suggesting that gays and lesbians should be given suspect class status so that when courts review laws affecting them, those laws will be viewed suspiciously and have to undergo a higher form of scrutiny that makes it more likely they are unconstitutional.

    In other words, affording gays and lesbians suspect class status will make it very difficult for laws passed for purposes of discriminating against gays and lesbians to withstand constitutional analysis.

    That's just an overview of suspect class status.

  • 11. Sagesse  |  July 16, 2012 at 1:38 pm


  • 12. Kathleen  |  July 16, 2012 at 2:02 pm

    Scotusblog report on Windsor's petition:

  • 13. Prop 8 Trial Tracker &raq&hellip  |  July 17, 2012 at 10:08 am

    […] 8 Trial Tracker of the latest DOMA petition to the Supreme Court in Windsor v. USA. Here’s our initial news post, here’s some analysis, and this morning Jacob tells us what it all […]

  • 14. arjay1951  |  July 17, 2012 at 11:27 am

    Scottie's posting is correct, of course, but perhaps the suspect classification material can be explained a bit better by reference to Supreme Court history. Additionally, i don't think women have ever been declared a suspect class.

    The original distiction was between a suspect class and a non-suspect class and arose in the 1938 case of Carolene Products(you don't need to know the details of the case to understand it). Carolene Products is best known for "Footnote Four," considered to be "the most famous footnote in constitutional law." The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases–a heightened scrutiny or "compelling state interest" in enacting the law in question.

    Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in those types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a heightened standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and judicial review.

    The language of "discrete and insular minorities" was pure dicta–not needed to decide the case. But it was considered the basis for most Equal Protection law that followed. It was followed by a seies of decisions that held that racial classifications were such a minority, and that the government had a higher duty (ultimately summarized as a "compelling state interest") to prove that a racial classification was justified.

    There was a long period that the Supremes decided when a classification was of a discrete and insular minority and hence suspect, or not, and hence had only to proved by a "rational basis". Most commentators came to see that the classification itself decided the matter–suspect classes were always stricken and rational basis ones were always upheld. Almost all the suspect classification were stricken, and therefore, a government could not constitutionally have a law that distinguishes between blacks and whites.

    There were some tricky cases in the early sixties–what about welfare laws that had a disparate impact on blacks but didn't mention race within the statute? Cases got muddled.

    Then came the women discrimination cases. Despite the best efforts of litigator Ruth Bader Ginsberg to have the Supremes declare women a suspect class, the Court has never done so. Instead, it developed an "intermediate" classification where treating women differently had to be justified by something more than a rational basis, but not necessarily a compelling state interest.

    Most of the DOMA cases argue both ways–that gays are a discrete and insular minority and hence a suspect class (and therefore cannot be discriminated against by government action since there is no compelling state interest in doing so), and alternatively, if not a suspect class, then treating us differently must at least have rational objectives. So far, we have most always won on the failure to "articulate a rational basis" for the enactment.

    This is probably more detail than needed, but explains some of the apparently vague language used by the court decisions on DOMA. And, to answer the initial question, yes, if gays and lesbians are considered a suspect class, they will be in a protected status and hence any classification of them must be justified for compelling reasons. Having ducked the issue for women as a class, i don't believe the Supremes will hold us to be one. But the argument still has to be made, since we fear someone will come up with some rational basis for a classification of us–hence the battle of experts as to child rearing, societal stability, and previously, gays as unidicted felons for wanting to violate sodomy laws.

  • 15. JayJonson  |  July 18, 2012 at 10:32 am

    At, Claude Summers (following Nan Hunter) says that asking the court to hear Windsor and Golinski may be ways to make certain that if Kagan recuses herself from the Massachusetts cases (which she may have discussed while she was Solicitor General) she can still participate in the decision about DOMA, hopefully providing at least the 5th vote to declare it unconstittuional. Here is the url:

  • 16. ALR  |  July 18, 2012 at 9:33 pm

    I am hoping that there is an organization that is keeping track of all the pleadings that have been filed in the marriage equality that have been filed at various times since "Baker v. Nelson" to the present and continuing till our full civil righs as Americans are made part of US constitutional law. It would truly be a treasure for both political and educational purposes encompassing many disciplines

  • 17. AnonyGrl  |  July 19, 2012 at 7:47 am

    There is a website in the works doing just that. Our own Kathleen is creating it.

  • 18. SHOES THROWER  |  August 1, 2012 at 2:06 am

    DOMAWatch once did that, but the site seems to be down.

  • 19. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:22 am

    […] Windsor broke with the current trajectory of these cases and filed a petition for a writ of certiorari to the Supreme Court herself, before judgment or even oral argument at the […]

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