Although the debate over marriage equality seems at times to center on the social and emotional costs inflicted on gay couples by the denial of legal recognition of their relationships, 83-year-old widow Edith Windsor can place a precise dollar amount on its cost to her: $363,053. That’s the amount in federal estate tax she had to pay when Thea Spyer, her wife and partner of nearly 50 years, passed away in 2009. Had they been a heterosexual couple, Windsor would have paid nothing.

Windsor and Spyer, a couple from 1963 onward, married in Ontario, Canada, in 2007 at a time when Massachusetts was the only state that recognized same sex marriage. Although federal law exempts spousal inheritances from the estate tax, the Defense of Marriage Act (DOMA), a 1996 law that limits the federal definition of marriage to opposite sex couples, prohibits the federal government from granting gay couples any of the benefits federal law gives to married couples, like the estate tax exemption.

Windsor filed a lawsuit in federal court in her hometown of New York in 2010, alleging that DOMA violates her constitutional right to equal protection of the law and in June federal judge Barbara Jones agreed, following several other cases that have also struck down DOMA.

After the Obama administration announced in February 2011 that it would no longer defend the constitutionality of DOMA, the Republican House leadership authorized the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) to defend the law in court cases around the country. BLAG appealed Windsor’s victory to the Second Circuit Court of Appeals, also in New York.

At oral arguments last week, Windsor’s lawyer and an Obama administration attorney urged the appeals court to affirm Judge Jones’s decision and ensure that Windsor enjoys the same spousal benefits as straight widows. Responding to the contention that striking down DOMA would infringe on state rights, Windsor’s attorney Roberta Kaplan argued that the case does not create a “federal right to marry, [and] does not require states to follow the path of New York, Vermont and Connecticut,” which are three of the states that currently recognize marriage equality. Instead, she said, the case would simply compel Congress to respect the evolving definitions of marriage enacted by the states.
 

Kaplan also compared DOMA to the “odious” anti-miscegenation laws declared unconstitutional by a unanimous Supreme Court in the case of Loving v. Virginia (1967). On the 40th anniversary of that landmark case, plaintiff Mildred Loving stated her support of marriage equality on behalf of herself and her husband Richard, who passed away in 1975.
 

Paul Clement, a lawyer for BLAG, argued that DOMA is “rational,” and therefore constitutional, because it saves the government money by creating a uniform standard of marriage benefits. “Saving money is a rational basis,” for the law, he contended.
 

Kaplan replied that the government may not save money by arbitrarily denying federal benefits, “especially when it involves an historically disfavored group,” such as gays and lesbians. She also pointed out that BLAG had not proven that DOMA did or would save money.
 

After the hearing, Windsor told reporters that “I look forward to the day when the federal government recognizes all marriages.”

-Matt Bewig

To Learn More:

Gay Widow Wants Unfair Tax Ruling Affirmed (by Adam Klasfeld, Courthouse News Service)

DOMA Slammed for Unfair Tax on Gay Widow (by Barbara Leonard, Courthouse News Service)

When A Woman Loves A Woman: In the Fight for Marriage Equality, it's Edith Windsor vs. the United States of America (by Jill Hamburg Coplan, NYU Alumni Magazine)

Thea Spyer and Edith Windsor (Wedding Announcement, New York Times)