DOMA Ruled Unconstitutional By Second Circuit Court of Appeals, Setting Up Final Showdown at the Supreme Court

Edie Windsor, DOMA Warrior

Statement by Lavi Soloway, co-founder, The DOMA Project:

Last week, in a 2-1 decision in the case of Windsor v. United States, the Second Circuit Court of Appeals ruled that the Defense of Marriage Act (DOMA) is unconstitutional because it violates the equal protection guarantee of the Fifth Amendment.  The Court’s decision was written by Dennis Jacobs, Chief Judge of the Second Circuit, a conservative jurist appointed to the bench by President George H. W. Bush in 1992.  The Second Circuit ruling is the 8th consecutive ruling striking down DOMA since July 2010, and it is the second such ruling from a federal court of appeals. (The First Circuit Court of Appeals ruled on May 31, 2012 that DOMA is unconstitutional.)

The ruling in Windsor is likely to be the last appeals court decision on DOMA before the U.S. Supreme Court announces later this year that it will formally agree to review the constitutionality of this law by accepting one or more challenges to DOMA now pending before the high court.

Importantly, the Second Circuit Court of Appeals not only found that DOMA was unconstitutional, it also determined that a heightened level of scrutiny must be applied to any law that discriminates against LGBT persons. That means, that in the Second Circuit, any provision of law that treats LGBT people unequally must be presumed to be unconstitutional. The Supreme Court may adopt the same standard when it takes up one or more of the pending challenges to DOMA next year (including Windsor) and decides the issue once and for all.

Last week’s victory over DOMA in the Second Circuit is historic, unprecedented and of such critical, far-reaching, potential legal significance that its full impact is hard to measure. But it is first and foremost a victory for an inspring, courageous, and determined DOMA Warrior, 83-year-old Edith (Edie) Windsor.

Edie and her wife, Thea Spyer, were married in Canada in 2007 after lmore than forty years together as a couple in New York. In 2009, when Thea passed away, the Internal Revenue Service, citing DOMA, denied recognition of their marriage and refused apply the marital deduction that protects surviving spouses from estate tax. Instead the IRS forced Edie to pay a $363,000 tax bill on Thea’s estate. Not only was she contending with the loss of her life-partner, but she was, in fact, being told that the life they had built together meant nothing to the government; to the IRS, it was as though it never happened. It is often so difficult for couples to quantify the heartache, the pain, and the hurt that a law like DOMA causes. Windsor v. United States leaves no question as to a very specific harm DOMA caused to Edie. Edie Windsor is not only a litigant, however; for years, she has demonstrated through her advocacy that our most powerful tools are the stories of our own lives. Edie’s belief that we must all be treated with dignity and respect was the reason for her lawsuit, and it is the reason that we, as binational couples, continue to fight DOMA by demanding nothing less, every day. What she accomplished in court last week is valuable to the LGBT movement in a way that defies any measure in dollars and cents.

As a grassroots campaign, The DOMA Project focuses on DOMA’s devastating impact on binational gay and lesbian couples who are denied access to green cards and all other vital family unification provisions of our immigration law, e.g. fiancé(e) visas, waivers for unlawful presence bars, stepchildren petitions, derivative non-immigrant status, status as spouses of refugees, spouses of green card lottery winners, etc. solely because of DOMA.  Each day that DOMA remains the law of the land, it forces gay couples couples into exile, separates couples from each other and from their children, and forces spouses and partners of U.S. citizens to remain in the United States without lawful immigration status, all with devastating effects not only on LGBT families and on our marriages, but also on our extended American families, our communities, our businesses, our friends and our own dreams for the future.

DOMA is tearing apart our families, and while every court ruling helps us build the foundation for its demise, we should not lose sight of the fact that federal courts are not the only, or even the primary forum, for our fight. We must keep up the momentum by continuing to focus our advocacy of the harmful consequences of DOMA, and on the policies that must be implemented now to counter those consequences. We cannot become complacent and simply trust that DOMA will ultimately be struck down by the U.S. Supreme Court. If we adopt such a passive approach, we are gambling, in a sense, with our marriages, our families and our futures. Instead, we must continue to help build a receptive climate for the powerful cases against DOMA by exposing the truth of what it is doing every day to our families. All of us can play a part if we choose to be a part of this fight to the finish line.  We all have too much at stake to simply sit back and watch events unfold.

Edie Windsor pictured with The DOMA Project co-founder, Lavi Soloway, and, Josh Vandiver, who, along with his husband Henri, was one of first and most high profile binational couples to take a leadership role in The DOMA Project.

The DOMA Project continues to work to empower binational couples and fight for immediate remedial policies to prevent the catastrophic, destructive impact DOMA is having on our families.

Like Edie Windsor, we will continue to fight for a federal government that no longer disrespects the love and commitment that same-sex couples have made to one another, where couples are no longer forced to choose between their love and their country, where LGBT families are not torn apart or forced into exile.

In his decision, Chief Judge Jacobs notes that the final decision on the constitutionality of DOMA, which discriminates against all same-sex couples by prohibiting the federal government from recognizing our marriages, “will have a considerable impact on many operations of the United States.”  Indeed, DOMA is not an abstraction; as the Windsor case reminds all, its consequences are devastating: our families are harmed every day by this law, often irreparably.  As such, while we celebrate every ruling as another nail in the coffin, we continue to fight to end the consequences of DOMA today.  There can be no waiting in the fight for full equality.  The slow and complex litigation will continue with a constant drumbeat of speculation as we near a final judicial resolution of DOMA, while tens of thousands of binational couples will struggle to make it through another day, trying to hold their marriages and their families together. As we celebrate last week’s tremendous victory, we cannot forget that there are remedies available to the government to protect and reunite all lesbian and gay binational couples and their families today. We will continue to fight to stop every deportation, separation and exile of binational couples.

Thea and Edie

To achieve immediate policy solutions it is important not to find oneself passively waiting for another court ruling, but rather to join other binational couples in active engagement and participation in our campaign. Over the the next eight months, our country will focus increasingly on this issue, and its expected resolution by the Supreme Court by June 2013.  But that should not become a distraction for binational couples eager to fight for immediate executive branch policies that will keep our families together now.

There is one court in which all of us dwell and that is the court of public opinion. We must continue to score victories in the court of public opinion in order to reach our goal of full equality. Edie has shown us how our own lived experiences, shared with a wide audience in compelling and personal terms, served to persuade of even the most conservative jurist. For her, and all the courageous men and women who have come before us and who have made our fight possible, let us never waver in our determination to achieve full equality.”

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  • Janice

    It continues to amaze and inspire us the never-ending fighting spirit that Edie Windsor possesses. Both she and Thea Spyer were, and continue to be, a great inspiration to us all in this fight to be equal.
    Margie and I watched a documentary on their lives together on Netflix recently. We were, and still are, extremely touched by their undying love for each other. What a wonderful couple they made! We laughed, we cried, and we cheered their wonderful story!
    The world is less because of its loss of Thea in 2009, but she will always be remembered for her energy and tenacity.
    Bless you Edie. May you continue to find the strength and fighting spirit to enable you to see this through to its inevitable end. I am certain that Thea looks down on you and feels such pride at what her wife has achieved.
    We will win this!

    Janice & Margie.

    October 28, 2012

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.