[JURIST] New York Attorney General Eric Schneiderman filed a brief with the US Supreme Court [official websites] on Tuesday challenging the constitutionality [brief, PDF] of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. DOMA denies federal recognition of same-sex marriages [JURIST backgrounder], which are legally recognized by the State of New York [JURIST report]. The amicus brief was filed in the case of an elderly New York woman who last week petitioned the Court to expedite her DOMA challenge [JURIST report], currently pending appeal in the US Court of Appeals for the Second Circuit [official website]. Edith Schlain Windsor, 83, successfully sued the US government [complaint, PDF] in the US District Court for the Southern District of New York (SDNY) [official website], which in June ruled on summary judgment that under a rational basis standard [Cornell LII backgrounder] of judicial scrutiny DOMA is unconstitutional [JURIST report] as an infringement on Fifth Amendment equal protection guarantees [Cornell LII backgrounder]. Schneiderman’s brief echoes the SDNY ruling, stressing federalism principles and state sovereignty:

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. … For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny.

The Court has not yet ruled on whether it will hear the case. Oral arguments before the Second Circuit in Windsor v. United States are scheduled for September 24.

Windsor and spouse Thea Spyer were legally married in 2007 after being engaged for 40 years. Spyer, who suffered from multiple sclerosis, died just two years later, leaving all of her property to Windsor. Windsor challenged the assessment of over $363,000 in federal estate taxes on property transferred to her upon her wife’s death—taxes that would not have been assessed on such a transfer between married partners of opposite sex. Windsor’s Supreme Court petition is the fourth in recent weeks to challenge the constitutionality of DOMA. Last week a lesbian couple filed a lawsuit in the US District Court for the Central District of California [official website] in a DOMA challenge that seeks to achieve for gay and lesbian couples the same federal immigration rights afforded to heterosexual couples [JURIST report] under the Immigration and Nationality Act [materials]. Also last week 132 members of the US House of Representatives [official website] filed an amicus brief [JURIST report] arguing that statutory classifications based on sexual orientation should be subject to heightened judicial scrutiny, and that DOMA should be overturned as unconstitutional under any level of judicial scrutiny. The brief was filed in the appeal of Karen Golinski v. Office of Personnel Management, the landmark case in which the US District Court for the Northern District of California [official website] ruled that DOMA is unconstitutional [JURIST report].