In an unusual move, the ACLU has filed a writ of certiorari with the U.S. Supreme Court in the case of Windsor v. United States. Back in November 2010 Edith Windsor had filed a lawsuit against the federal government, seeking reimbursement of over $363,000 in estate taxes that she paid as the result of the death of her same-sex spouse, Thea Spyer. The New York couple were legally married in Canada in 2007 and Ms. Spyer died in 2009, leaving her entire estate to Ms. Windsor. Since U.S. federal law does not legally recognize same sex marriage due to the Defense of Marriage Act ("DOMA"), which only recognizes marriages between one man and one woman, Ms. Windsor's inheritance of Ms. Spyer's estate resulted in a $363,053 federal estate tax bill. This would not have been the case had Windsor and Spyer been considered legally married under U.S. federal law, since no federal estate taxes would have been owed due to the unlimited marital deduction. Windsor promptly paid the estate tax bill and then the ACLU filed the lawsuit on her behalf, asking for reimbursement of $363,053 plus interest.
Fast forward to June 6, 2012, and a United States District Court for the Southern District of New York judge ruled that Section 3 of DOMA, which bars the federal government from recognizing marriages between same sex couples who are seeking federal benefits tied to being married, is unconstitutional as it relates to the Windsor case and ordered the government to pay back the estate taxes paid by Windsor plus interest.
But on June 13, 2012, the Bipartisan Legal Advocacy Group of U.S. House of Representatives ("BLAG") filed an appeal of the ruling with the U.S. Court of Appeals for the 2nd Circuit, the legal next step for the case to progress. (BLAG has been defending DOMA in court since Obama's Justice Department has been advised not to defend it.) The ACLU immediately asked for the appeals court to expedite the case, citing Ms. Windsor's age (83) and declining health (heart condition) as reasons for the case to be fast-tracked. The 2nd Circuit agreed.
And that's not where the ACLU stopped - last week the writ of certiorari was filed on Ms. Windsor's behalf directly to the U.S. Supreme Court, again citing Ms. Windsor's age and declining health as reasons for the case to jump over the Court of Appeals and instead be decided one or for all by the Supreme Court. If the high court agrees to hear the Windsor case, and that's a big "if," it could do so as early as next spring. Meanwhile, the case will be heard in the U.S. Court of Appeals for the 2nd Circuit in the fall.
- Federal District Court Rules That Married Same Sex Couples Do Not Have to Pay Estate Taxes
- DOMA headed to the Supreme Court?
- Edie Windsor vs. DOMA May Be Best Chance To Strike Federal Gay Marriage Bar
- Read the Windsor "Writ of Certiorari Before Judgment"
- What Same Sex Couples Need to Know About Estate Planning