The Second Circuit Court of Appeals ruled in favor of Edie Windsor, the widow of Thea Spyer. When Thea died, Edie paid $363,000 in taxes on what Thea left to her, which she would not have had to pay if the Defense of Marriage Act (“DOMA”) didn’t exist. Today, the court ruled in favor of Edie. Edie’s lawyers – part of the same team that is working on our case for binational couples — challenged part of DOMA in federal court and won. The House Republicans (“BLAG”) had appealed that decision, and today, the Circuit Court affirmed the lower court’s ruling and held that Section 3 of DOMA is unconstitutional.
Q: Haven’t a lot of other courts already said that?
Yes – several other courts have said that DOMA is unconstitutional. This is the first time, however, that this court has ruled on DOMA. The Circuit courts are right below the Supreme Court, and the Second Circuit governs federal law in New York, Connecticut, and Vermont. This is the second time a Circuit court has ruled on DOMA. (The other time was in the First Circuit, which found DOMA unconstitutional in the Gill case earlier this year.)
Q. Why is today’s ruling significant?
Today’s decision is the first time a federal court has applied “heightened scrutiny” in a sexual orientation case. Now that there are two Circuit court decisions finding DOMA unconstitutional, it is almost certain that the Supreme Court will agree to hear one (or more) DOMA cases soon.
Q: What is “heightened scrutiny?”
Heightened scrutiny means that the government agrees that decisions made for a certain minority group by the majority must be looked at more carefully because the minority doesn’t always have the power to defend itself against the majority. This is the first time that a federal court has held that LGBT people should get “heightened scrutiny,” which means that the government has to meet a higher burden to justify treating LGBT people differently. This is a very big deal: it’s what the Obama Justice Department recommended in February, 2011, and today the Second Circuit Court of Appeals agreed. It’s an important precedent that will help LGBT people in employment discrimination and other claims, not just marriage and DOMA cases.
Q: So does Edie Windsor get her money back? And can I file a green card application?
Not yet. Unfortunately, it is not likely that anyone will get benefits denied by DOMA until there is a ruling by the U.S. Supreme Court. The case is already pending for possible appeal before the Supreme Court. Most lawyers expect the Supreme Court will agree to hear Gill v. Office of Personnel Management, a similar case on behalf of married couples in Massachusetts; they may hear Edie’s case as well. She won’t get her money back — and DOMA will not be invalidated -— until the Supreme Court either hears the cases and decides them, or announces that it will not hear the appeals. We expect to know more by the end of November, with a possible decision by June of 2013.
Q: So what does this mean for binational couples?
Blesch v. Holder, Immigration Equality’s challenge to DOMA on behalf of five binational couples seeking green cards, is filed in the Eastern District of New York, which is part of the Second Circuit. Judge Carol Bagley Amon stayed our case until Windsor was decided, and now Windsor has been decided favorably. We have always believed that we would win our case, and we are even more sure now. We’ll fill you in with more information in the weeks ahead. As hard as it is to wait, this victory is another move forward on behalf of LGBT immigrant families desperate for relief. Make no mistake, we will win!
Photo via Callen-Lorde Community Health Center