The federal Defense of Marriage Act is rife with “irrationality” that disadvantages same-sex couples in concrete ways, such as imposing tax penalties, and in more subtle ways that its drafters never envisioned, said Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who will argue for the statute’s invalidation before the U.S. Supreme Court in March.

Kaplan made her comments yesterday during a session on the future of DOMA at the New York State Bar Association’s annual meeting at the Hilton New York.

Roberta Kaplan at yesterday’s NYSBA meeting
Rick Kopstein/NYLJ

She said the statute treads on the basic rights that should be afforded to all couples, heterosexual and homosexual, through the institution of marriage.

“The issue in this case is whether there is a sufficient federal interest—a federal interest” in treating married same-sex couples as though they were not married, “essentially nullifying their marriages, for the purposes of all federal law,” Kaplan said.

On March 27, Kaplan will argue in United States v. Windsor that the statute is unconstitutional on several grounds, including its imposition of an estate tax on same-sex couples that does not apply to heterosexual couples.

Kaplan represents Edie Windsor, who married her partner Thea Spyer in Canada in 2007 after the couple had lived together for more than 40 years. Spyer died in 2009 and left her estate to Windsor.

Federal tax statutes would allow the inheritance to pass untaxed from the estate of Spyer to Windsor if they were a married heterosexual couple, but Windsor faces a federal estate tax bill of $363,000—and more than $600,000 over all—because the federal government does not recognize same-sex marriage.

Southern District Judge Barbara Jones (NYLJ, June 7, 2012) and a panel of the U.S. Court of Appeals for the Second Circuit (NYLJ, Oct. 19, 2012) both found that DOMA discriminates against same-sex couples.

Kaplan also will argue in Windsor that the definition of “marriage” under §3 of DOMA as “only a legal union between one man and one woman as husband and wife” violates the Fifth Amendment guarantee of equal protection under the law for legally married same-sex couples.

Yesterday’s DOMA panel was cosponsored by the state bar’s Committee on LGBT People and the Law and the Committee on Civil Rights.

Kaplan said yesterday that being married also carries with it consequences that most people would agree same-sex couples should face, but do not because DOMA precludes the federal government from recognizing same-sex marriage.

She used the example of Representative Barney Frank, D-Mass., and the possibility he could be appointed as U.S. senator should the current senator, John Kerry, be confirmed as U.S. secretary of state. Frank married Jim Ready last July.

“If someone goes to his spouse and offers his spouse $10,000 in cash in order to influence Barney Frank’s vote, that is not a crime under federal law,” Kaplan said. “It’s not bribery. It’s not a federal crime. Why? Because Barney Frank’s spouse is not a ‘spouse’ under federal law. Obviously that is an irrational result. It is a result that I guarantee you, because I’ve read all the legislative history, that Congress never even thought about when they passed DOMA in 1996, in part because I don’t think they had a conception that these marriages were going to happen, or happen anytime soon.”

The day before Kaplan is scheduled to appear at the high court, the justices will hear Hollingsworth v. Perry, a case challenging Proposition 8 of 2008, which prohibited same-sex marriage in California.

Family Law

Appearing yesterday at a luncheon of the state bar’s Family Law Section, Andrew Koppelman, a professor at Northwestern University School of Law, predicted that the Supreme Court will rule in Windsor’s favor but on narrower grounds than same-sex marriage advocates would like. He said the ruling would be based on Romer v. Evans, 517 U.S. 620 (1996), in which the Supreme Court invalidated a Colorado proposition prohibiting recognition of homosexuals as a “protected” class for discrimination purposes.

Koppelman said that such a ruling would provide Windsor relief, but not serve by itself to invalidate the so-called “mini DOMAs” that have been adopted by 35 states since the federal law went into effect.

Koppelman said he doubts the high court wants to reopen a national debate over same-sex marriage, especially since polls indicate that Americans are increasingly in favor of gay marriage.

He cited a recent survey showing that three out of four Americans under the age of 29 favor same-sex marriages.

“In the long-term, it [the same-sex controversy] is dying,” Koppelman said. “The cultural wars over same-sex marriage are over.”

Also appearing before the LGBT and Civil Rights committees’ panel were Touro Law School Professor Lewis Silverman and attorneys Ralph Randazzo of Randazzo & Randazzo in Huntington and Mariette Geldenhuys of Ithaca.

Geldenhuys said that just as many jurisdictions do not recognize a right of a same-sex couples to wed, they also don’t offer same-sex couples a way to divorce.

“Divorce is really one of the biggest benefits of marriage, only a lawyer can get away with saying that,” she said. “What I mean by that is if people sadly come apart and their relationship is not working, there is a structure [through divorce] to try at least to help them come apart in a way that is equitable.”