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NY AG: DOMA Prevents Us From Treating Gay Couples Equally

NY AG: DOMA Prevents Us From Treating Gay Couples Equally


New York’s attorney general Eric T. Schneiderman has filed a friend of the court brief in a lawsuit challenging the 1996 Defense of Marriage Act, saying that the ban on federal recognition of same-sex marriage means that New York is forced to treat same-sex couples unequally even though the state itself now has same-sex marriage recognition.

Schneiderman made the filing in support of plaintiff Edith “Edie” Windsor in the case Windsor v. United States. Edith received an estate tax bill of more than $360,000 after the death of her wife Thea Spyer in 2009. The two women had been together for 44 years and had married in Toronto, Canada, in 2007, a marriage that was duly recognized under New York state law. The inordinately high estate tax bill came originates from the fact that the federal government must, per DOMA’s restrictions, treat married same-sex couples as legal strangers.

“By discriminating among married couples based on sexual orientation and sex, DOMA deprives New York of the ability to extend true equality to all marriages valid in the state,” argues Schneiderman in the brief.

More from the Advocate:

According to a statement from the attorney general’s office, “In the amicus curiae brief, Schneiderman argues that in redefining the term marriage, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He goes on to argue that the statute is an improper intrusion on the traditional role of states in defining marriage; that it discriminates based on sex and sexual orientation and therefore must be subjected to heightened scrutiny; and that DOMA fails any level of scrutiny because it does not advance any legitimate federal interest.”

The brief asks the court to grant the plaintiff’s motion for summary judgment and declare section 3 of DOMA unconstitutional.


Schneiderman said, “The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution and improperly intrudes on the traditional role of states in defining marriage. The State of New York has long recognized out-of-state, same-sex marriages and the enactment of the Marriage Equality Act further cements our state’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”

Schneiderman is one of three defendants named  in a suit filed Monday that seeks to overturn New York’s Marriage Equality Act. The lawsuit, brought by a group of religious conservatives from within the state but being supported by an out-of-state legal firm, charges the attorney general, along with the state senate and the department of health, acted illegally to bring about marriage equality in the state.

Such claims have been rubbished by Gov. Andrew Cuomo who’s spokesman said the suit has no merit and that those bringing about the court action lack a basic procedural knowledge of how the state’s laws work. Read more on that here.

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Photo used under the MorgueFile user license, with thanks to mensatic.

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2:17AM PDT on Aug 1, 2011

I am glad that the next logical step is for NY to reject DOMA, push on up for equality and file a lawsuit! Go Schneiderman!!

11:28PM PDT on Jul 28, 2011

Wow Lee S., nice post (sarcasm.)

I guess you're so striking that you had to post a picture of your dog instead of yourself, lest we all faint dead-away from your alleged beauty, eh?

BTW, read your profile. Walk your talk.

11:02AM PDT on Jul 28, 2011

This article demonstrates clearly why separate-but-equal status for same-sex marriage isn't equal at all.

10:46AM PDT on Jul 28, 2011

They better not be able to undo gays getting married in NY. I have a personal stake in this as my oldest son and his partner of 15 years are getting married next Wednesday, Aug 3rd. I am so glad for them as they are so perfect for each other. Doma is and always should have been unconstitutional. LIFE LIBERTY AND THE PURSUIT OF HAPPINESS.

5:56AM PDT on Jul 28, 2011

I've NEVER seen 2 lesbians look like the ones in the article photo.

10:32AM PDT on Jul 27, 2011

That's horrifyingly unfair! FIGHT it!!!

7:40AM PDT on Jul 27, 2011

Go Eric T. Schneiderman! DOMA is discriminatory.

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