An 83-year-old former IBM programmer is asking the U.S. Supreme Court to strike down a law that cost her more than a quarter of a million dollars and deprived her, and thousands of other gay couples, of federal marriage benefits.
At issue is the Defense of Marriage Act, known as DOMA, passed by overwhelming margins in both houses of Congress in 1996 and signed by President Bill Clinton. It bars federal agencies from recognizing the validity of same-sex marriages in the states where they are legal.
The arguments are being heard just one day after a challenge to California’s Proposition 8, which put an end to same-sex marriage in that state, was brought to the high court. On Tuesday, the Supreme Court hinted that it might be hesitant to issue any kind of sweeping ruling declaring that same-sex couples have a constitutional right to marry. The justices seemed wary of issuing a broad decision that would apply to any state outside of California.
As a result of DOMA, same-sex couples in states where same-sex marriages are legal are accorded state and local marriage benefits, but not more than 1,100 federal ones. These range from spousal health coverage to Social Security and veterans' benefits.
For more than 40 years, Edie Windsor lived with another woman, Thea Spyer, and the two were eventually married in Canada in 2007. But when Spyer died two years later, leaving Windsor the estate, the IRS sent a tax bill for $363,053, because DOMA barred the federal agency from recognizing their marriage. The surviving spouse of a traditional marriage is not required to pay federal estate taxes.
"I couldn't believe that they were making a stranger of this person I lived with and loved for 43-something years," she said.
So she sued the U.S. government, and two lower federal courts found that DOMA amounted to unconstitutional discrimination. As the case wound its way through the legal process, the Justice Department, originally her adversary, became her ally.
Two years ago, Attorney General Eric Holder notified Congress of President Barack Obama's conclusion that "classifications based on sexual orientation" were inconsistent with the Constitution's guarantee of equal protection under law. The Justice Department stopped defending DOMA in court.
House Republicans then hired a former solicitor general in the George W. Bush administration, Paul Clement, to take up DOMA's defense. In his written briefs filed with the Supreme Court, he argues that Congress must be able to decide on a definition of marriage for itself.
"The federal government has the same latitude as the states to adopt its own definition of marriage for federal law purposes and has a unique interest in treating citizens across the nation the same," Clement says.
The House Republicans say Congress sought to tie federal benefits to the traditional understanding of marriage and its origins as a way to address "the tendency of opposite-sex relationships to produce unintended and unplanned offspring." In passing DOMA, they say, Congress sought to "foster relationships in which children are raised by both their biological parents."
But the Justice Department and lawyers for Edie Windsor each urge the court to find that DOMA amounts to unconstitutional discrimination because it lacks a legally sufficient government purpose.
"Denying federal protections to married gay couples will not affect whether straight couples marry or have children who are biologically related to both parents," argues Roberta Kaplan, a New York lawyer representing Edie Windsor.
"No straight couple would call off their wedding if Ms. Windsor receives a tax refund," she says.
The Obama administration urges the court to find that two of the other justifications cited by Congress in passing DOMA -- defending traditional notions of morality and of marriage -- cannot carry the law over the constitutional hurdle.
"Moral opposition to homosexuality, though it may reflect deeply-held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people," the Justice Department says.
As for tradition, the government says DOMA does nothing to limit marriage to opposite-sex couples, because the states decide for themselves whether to permit it. And no matter how long established, "tradition cannot by itself justify a discriminatory law under equal protection principles."
A decision striking down DOMA would not require states to allow same-sex marriages: they would remain free to decide for themselves. But the federal government would be required to recognize marriages in the states where they are legal.
Nine states now permit same-sex couples to get married -- Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. So does Washington, D.C.
The political landscape has shifted dramatically since the law was enacted 17 years ago. Former President Clinton said earlier this month that he no longer supports the law he signed in 1996 and urged the Supreme Court to strike it down.
"Many supporters of the bill known as DOMA believed that its passage 'would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.' It was under these circumstances that DOMA came to my desk," he wrote in a column published in the Washington Post.
"Even worse than providing an excuse for discrimination, the law itself is discriminatory," he said.
In order to decide the issues at the heart of the case, however, the justices will have to consider whether procedural complications allow them to get there, due to the unusual way in which the case arrived on their doorstep.
The Justice Department, which asked the court to take the case, is in an odd posture, because it now sides with Edie Windsor, who won in the lower federal courts. A party that prevails cannot normally appeal the decision.
And while the defense of DOMA had been carried on by the House Republicans, there's a further question about whether they meet the legal rule requiring that a party to a case claim some specific injury. It may not be enough for them to assert that they want to see DOMA enforced.
To help the court navigate these potential roadblocks, it appointed a Harvard Law School professor, Vicki Jackson, to argue the jurisdictional issues during Wednesday's courtroom session.
A ruling in the case will come sometime before the end of the court's term in late June.