Gay Widow Wants Unfair Tax Ruling Affirmed

     MANHATTAN (CN) – An Obama administration lawyer urged the 2nd Circuit to ensure that an 83-year-old lesbian widow receives the same spousal benefits as other Americans.
     Edith Schlain Windsor filed a federal complaint against the government after she had to pay $363,053 in federal estate tax when her wife, Thea Spyer, succumbed to multiple sclerosis and a heart condition in 2009.
     The couple had been together in New York City since 1963 and married each other in Canada and another jurisdiction where same-sex marriage is legal.
     Though federal law provides an estate-tax exemption on spousal inheritances, Windsor could not qualify for the benefit under a provision of the Defense of Marriage Act that defines marriage as the union of one man and one woman.
     Since the filing of her 2010 complaint in Manhattan, federal judges across the United States have struck down DOMA as unconstitutional.
     U.S. District Judge Barbara Jones continued this trend in June with her finding that the law trampled on Windsor’s constitutional rights.
     If that decision survives on appeal, it would have little impact on the federal recognition of same-sex marriage, but it would force Congress to respect evolving marriage definitions from state legislatures, Windsor’s attorney told the 2nd Circuit.
     “This case is not about the federal right to marry,” Roberta Kaplan told a packed courtroom. “[It] does not require states to follow the path of New York, Vermont and Connecticut.”
     Kaplan compared the situation to the fight against “odious” anti-miscegenation during the civil rights movement. Even before the 1967 Supreme Court declared such laws unconstitutional in Loving v. Virginia, courts had traditionally allowed biracial couples to marry in states that permitted it, Kaplan said.
     On the 40th anniversary of that landmark ruling, plaintiff Mildred Loving released a statement in support of marriage equality on behalf of herself and her now-deceased husband, Richard.
     “I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, that many people, black or white, young or old, gay or straight seek in life,” Loving said. “I support the freedom to marry for all. That’s what Loving, and loving, is all about.”
     Paul Clement, a lawyer for the Bipartisan Legal Advisor Group of the U.S. House of Representatives, tried to convince the judges that DOMA is “rational” because it allegedly saves the government money through a uniform standard of marriage benefits.
     “Saving money is a rational basis,” he said.
     Noting that the argument has its limits, he continued, “You can’t say you’re going to save money by denying benefits to people with blue eyes.”
     Kaplan countered that the government cannot save money by arbitrarily withholding federal benefits, “especially when it involves an historically disfavored group.”
     Moreover, the government has not proven it would save money from excluding same-sex couples from marriage benefits, she added.
     Speaking facetiously for Congress, Kaplan said, “We want to save money, but we don’t know whether it’ll save money.”
     In 2011, the Obama administration told Congress that it would no longer defend DOMA.
     That announcement caused Justice Department lawyer Stuart Delery to side with Windsor in his arguments, but a procedural quirk nevertheless forced Delery to sit at Clement’s table as a fellow appellant.
     The chief judge of the 2nd Circuit, Dennis Jacobs, needled him about the apparent inconsistency.
     “In my day, when you won, you didn’t appeal,” Jacobs said.
     Delery explained that the judgment is against the federal government, forcing him to appeal until the court reaches a final decision.
     He nevertheless urged the court to use “heightened scrutiny” toward protecting the rights of politically marginalized groups.
     Jacobs seemed skeptical, noting that Delery represented the president and the attorney general. “Isn’t it hard for you to argue political powerlessness,” he asked.
     Delery replied that advances have not necessarily changed the tide.
     “While progress has been made, that was certainly true of gender in the 1970s, and courts did not view that as dispositive,” Delery said.
     He pointed out that homosexuality was “criminalized until recently with far-reaching consequences.”
     Meanwhile Tennessee had trampled on the rights of gay people as recently as 2011, Delery said, apparently refering to the passage of a Senate-backed bill to ban mention of lesbian, gay, bisexual and transgender topics in state schools.
     Earlier in the day, Kaplan argued that DOMA could never have been approved by nearly 350 House representatives in 1996 if gays and lesbians had political power.
     Judge Chester Straub noted that the courts and executive branch had applied DOMA until two years ago.
     Judges Straub, Jacobs and the third panelist, Christopher Droney, reserved decision on the matter.
     Outside the courthouse, Windsor told reporters: “I look forward to the day when the federal government recognizes all marriages.”
     For the time being, the spritely widow said that she revels in being the public face of marriage equality in New York state.
     “I love it,” she said.

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