[JURIST] New York Attorney General Eric Schneiderman [official website] filed an amicus curiae brief [text, PDF] challenging the constitutionality of the federal Defense of Marriage Act (DOMA) [text; JURIST news archive] barring recognition of same-sex marriages [JURIST news archive]. The brief was filed [press release] in the US District Court for the Southern District of New York [official website] in the case of Windsor v. United States, arguing that DOMA violates the Equal Protection Clause [Cornell LII backgrounder] by precluding same-sex couples from the same rights and privileges of opposite-sex couples, and that it intrudes on what had previously been the the exclusive right of the states to define marriage. The brief argues that since DOMA discriminates based on sex and/or sexual orientation, it should be subjected to a heightened scrutiny standard and that it fails to meet that standard under the Fifth Amendment [text]. The brief further argues that DOMA violates federalism principles:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

Edith Windsor and Thea Spyer obtained a legal same-sex marriage in Canada in 2007, but Spyer died just two years later. Windsor is challenging the assessment of estate taxes to property transferred to her upon her wife’s death that would not have been assessed on such a transfer between married partners of opposite sex. Scheidernman’s action comes just days after New York enacted its same-sex marriage law after Governor Andrew Cuomo (D) [official website] signed the bill into law [JURIST report] last month.

US President Barack Obama has expressed support [JURIST report] for the repeal of DOMA and also support for Respect for Marriage Act [text], which was introduced by Congressional Democrats [JURIST report] in February to repeal DOMA. In March, House Speaker John Boehner (R-OH) [official website] announced that he was launching a legal advisory group to defend [JURIST report] DOMA, stating “[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.” Democrats introduced the Respect for Marriage Act following February’s announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA, which restricts the federal definition of marriage to heterosexual couples, in court cases challenging the provision. The announcement came just one month after the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA.