New York's Attorney General
announced Tuesday that its office has filed an amicus brief (
full text) in
Windsor v. United States, a case pending in federal district court in New York challenging the constitutionality of the federal Defense of Marriage Act. The case is one in which the surviving spouse of a same-sex couple legally married in Canada is challenging the federal government's refusal to recognize her as a spouse for federal estate tax purposes. (
Background and pleadings in case.) It is also one of the two cases in which the U.S. Department of Justice announced that it would not defend the constitutionality of DOMA. (See
prior posting.) New York's filing of the amicus brief comes only days after same-sex marriages began to be legally performed in the state, though New York had previously recognized the validity of same-sex marriages performed in other states or countries. Here is an excerpt from the amicus brief:
By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.
For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny.
Yesterday's
New York Law Journal has more on the background of the case.
