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GOP attorney strongly defends DOMA in New York widow’s lawsuit

CHRIS JOHNSON | Washington Blade
Thursday, September 27, 2012
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NEW YORK — The House Republican attorney defending the Defense of Marriage Act in court took particular issue on Thursday with an octogenarian lesbian’s case against by the law by suggesting the timing and location of her marriage makes challenge invalid.

Paul Clement, a former U.S. solicitor general under the Bush administration, claimed before a federal appeals court that Edith Windsor doesn’t have a case because she married in Canada and her spouse, Thea Spyer, died in 2009 — two years before New York legalized same-sex marriage.

Edith ‘Edie’ Windsor testifies in her Federal Court case against DOMA.
(Washington Blade file photo by Michael Key.)

“The critical question isn’t 2012, the critical question is 2009,” Clement said.

Clement added that the issue of whether the marriage is sufficient for a challenge against DOMA should be brought to certification before the New York Court of Appeals, the highest state court in New York.

James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project, told the Blade after the oral arguments that Clement was “grasping at straws” when making these claims.

“There’s clear law in New York that New York in 2004 recognized the marriages of same-sex marriage performed in Canada and in other states that allowed same-sex couples to marry,” Esseks said.

Esseks acknowledged that the high court in New York hasn’t affirmed those marriages, but said that three lower courts have recognized those marriages as legitimate as well as the governor and attorney general.

“There’s just no debate about it; It’s quite clear,” Esseks said. “I think we heard from the court today — it’s difficult to make any predictions — but based on what I heard from the court, I don’t think that that’s how the court’s going to decide this question. They’re not going to duck the constitutionality of the Defense of Marriage by saying we’re not sure whether she’s actually married or not.”

A three-judge panel on the appellate court heard from three attorneys during oral arguments in the case, known as Windsor v. United States. The lawsuit was filed by the American Civil Liberties Union on behalf of Windsor, who was forced to pay $363,000 in estate taxes upon the death of her spouse because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.

Chris Johnson, Washington Blade

Edith Windsor (right) speaks with the ACLU’s James Esseks to reporters following oral arguments in the Second Circuit.

The panel consisted of Chief Judge Dennis Jacobs, who was appointed by President George H.W. Bush; Judge Chester Straub, who was appointed by former President Bill Clinton; and Judge Christopher Droney, who was appointed by President Obama.

It’s the second time a federal appellate court has considered the constitutionality of DOMA. In April, the U.S. First Circuit of Appeals heard oral arguments in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appeals issued a decision against DOMA as result of that consideration.

Lawyers presented before the Second Circuit starkly different views on the the Defense of Marriage Act on Thursday before judges reviewing Windsor’s challenge to the anti-gay law, which was passed by Congress in 1996.

In addition to questioning whether Windsor has standing, Clement, who’s DOMA in court on behalf of the House Republican-led Bipartisan Legal Advisory Group, drew upon the cases of Baker v. Nelson, a 1972 Minnesota case seeking the legalization of same-sex marriage that the U.S. Supreme Court declined to hear for lack of substantive federal question.

Clement acknowledged the case is 40 years old and times may have changed since then, but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.”

Plaintiffs in the case had another view. Roberta Kaplan, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued against DOMA on behalf of Windsor, saying the law be struck down because states can already decide on their own what decisions to make about who can marry within their borders.

“The problem supposedly solved by uniformity is a problem that our federalist principles have already dealt with,” Kaplan said.

Kaplan added the case against DOMA isn’t about any federal right to marry because even with the law in place, gay couples haven’t been discouraged from marrying across the country, nor have they been discouraged from adopting.

Acting U.S. Assistant Attorney General Stuart Delery, who’s gay, assisted in the litigation against by presenting arguments on behalf of the Obama administration, saying the court should strike down because of the long history of discrimination against LGBT people — including the criminalization of homosexuality and being barred from military service.

“Sexual orientation is a fundamental part of person’s identity that says nothing about a person’s ability to contribute to society,” Delery said.

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