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Edith Windsor files Supreme Court brief arguing DOMA Section 3 is unconstitutional

Edith Windsor, the original plaintiff in the DOMA challenge U.S. v. Windsor, files a brief with the Supreme Court arguing that DOMA’s Section 3 is unconstitutional.  In the brief, Windsor’s lawyers argue that “DOMA’s discriminatory treatment of married gay couples violates Ms. Windsor’s right to the equal protections of the laws as guaranteed by the Fifth Amendment.”

Arguing in support of a heightened scrutiny of judicial review for laws pertaining to gays and lesbians, Windsor’s lawyers write, “The fact that gay couples are the only legally married couples in the entire nation who cannot benefit from the wide range of federal benefits provided to all other legally married couples is itself powerful evidence of gay people’s ongoing political vulnerability.”

In the brief, Windsor and her attorneys argue that, while DOMA should be considered (and invalidated) using heightened scrutiny, it also fails the more deferential rational basis test.  The law, they write, is “not rationally related to any legitimate federal interest in procreation,” “not rationally related to any … interest in uniformity or conserving federal resources,” and “fails to further any legitimate federal interest in dual sovereignty, tradition, or caution.”  The brief also addresses the specific tax-related facts of Windsor’s challenge, arguing that “even if the federal government has a legitimate interest in encouraging responsible procreation by straight couples, it would be irrational to think that denying gay couples the benefits of the estate tax deduction would do anything to further that interest.”

Windsor’s lawyers also make the intriguing case in their brief that DOMA exempts same-sex married couples from certain ethical restrictions by which opposite-sex couples must abide:

“At the same time, DOMA exempts married gay couples from federal restrictions and duties, such as the financial disclosure requirements that apply to the spouses of federal officials…. DOMA also prevents the federal government from enforcing laws against third parties where those laws depend on marital status. For example, it is a federal crime to retaliate against a federal law enforcement official by threatening or injuring his or her spouse…. Under DOMA, however, the federal government cannot use this law to prosecute the murderer of a gay FBI agent’s spouse.”

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