New York City has weighed in with the U.S. Supreme Court, arguing in an amicus brief that the Defense of Marriage Act’s definition of marriage as exclusively between one man and one woman is unconstitutional. In a brief filed July 25, the city argues in support of Edith Windsor, who has asked the high court to immediately review a decision by Southern District Judge Barbara Jones (See Profile) declaring the act’s §3 null and void (NYLJ, June 7). Jones awarded Windsor $363,000 in taxes that the estate of Thea Spyer, her longtime partner she married in Canada in 2007, had to pay—taxes that would not be assessed against the estate in a traditional marriage.
Windsor’s is one of three challenges to the Defense of Marriage Act before the high court. After the Obama administration declared last year it would no longer defend the act, the Republican majority in the House of Representatives’ Bipartisan Legal Advisory Group voted to defend §3. The city Law Department’s amicus brief states that §3 violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to people of the same sex who are legally married under state law. It states that disparate treatment of married gays undermines the city’s non-discrimination laws and “forces the city to be the unwilling agent of federally required separate treatment of lawfully married employees.”