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Religious Tolerance logo

Windsor v. United States lawsuit attempting to have the federal
"Defense of marriage act" (DOMA) declared unconstitutional

Overview. Plaintiff's preliminary statement.

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For centuries, individual states had:

  • Defined which couples are eligible to marry,
  • Issued marriage licenses, and
  • Recorded the resultant marriages.

American married couples could always rely on the federal government to recognize their marriage and give them the same same rights, privileges and protections for themselves and their children.

In 1996, there was a possibility that Hawaiian courts might allow same-sex couples in that state to marry. This was a major concern to most members of Congress. It was at a time when public opposition to same-sex marriage (SSM) was above 65% and support was only about 30%. Congress passed the Defense of Marriage Act (DOMA), and it was signed into law by President Clinton.

Section 3 of that act ordered the federal government to ignore all legal marriages solemnized and registered in states and territories if the couple was of the same gender. Under this act, the federal government was required to treat married same-sex couples as legal strangers -- as if they were roommates merely sharing accomodation. This has denied spouses medical benefits, has required them to pay hundreds of thousands of dollars inheritance taxes, denied them the right to be involved in medical decisions involving their spouse, etc. Section 3 cuts them off from over 1,100 protections and benefits.

Thjea Spyer & Edith Wilson Dr. Thea C. Spyer, shown on the left, met Edith Windsor in New York City's West Village during the early 1960's. They lived together in New York State for 44 years, and were the subjects of a documentary film titled: "Edie & Thea: A Very Long Engagement." 1 They were one of the first couples to register as domestic partners in New York City. Two years after marriages in Canada became available to same-sex couples in 2005, Thea Spyer and Edith Windsor married there in 2007. Their marriage was recognized by New York State. However, because of DOMA, the federal government could not regard them as other than roommates. The image above is from Thea and Edith's wedding announcement. Edith became a caregiver during Thea's long interval of declining health due to multiple sclerosis.

Thea died in 2009, leaving the matrimonial home to Edith in her will. If one of them had been male, the federal government would have recognized their marriage, and Edith would not have had to pay estate taxes on her inheritance. However, DOMA required that Edith pay $350,000 in taxes; their marriage had no legal standing with the federal government because of DOMA. She launched a lawsuit asking for both a refund of the taxes paid and a declaration by the court that DOMA is unconstitutional. 2

The following video by Edith was placed on You Tube by the American Civil Liberties Union (ACLU) who is handling her lawsuit:


As of 2012-NOV, this video had received 161,132 viewings, 512 "likes" and 14 "dislikes."

On 2011-JUN-24, a law allowing SSM was signed into law in New York State. Many hundreds of same-sex couples -- some of whom have been together for decades -- married on Sunday, 2011-JUL-24, as soon as the law went into effect. Two days later, officers in the Attorney General's office in New York State filed a brief in support of Edith Windsor's case. They support her request to have the federal Defense of Marriage Act declared unconstitutional.

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2010-NOV-09: Preliminary statement filed: Edith Schlain Windsor v. United States:

The preliminary statement says in part:

"[The] clearly unequal treatment of Edie and Thea's marriage both demeans their remarkable commitment to one another and has great practical significance for Edie, the sole beneficiary of Thea's estate. Under the Internal Revenue Code, the transfer of money or property from one spouse to another upon death generally does not trigger any estate tax at all. Because of the operation of DOMA, however, the federal government does not consider Edie and Thea to have been married, and, as a result, Edie has been forced to pay more than $350,000 in federal estate tax that she would otherwise not have had to pay if Edie and Thea's marriage were recognized under federal law. ..."

"Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the added insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four-year committed relationship."

"Throughout the history of this country, whenever the federal government has attached protections or responsibilities to marriage, it has always deferred to the states' determination of whether a couple is validly married. Since 1996, the federal government has deviated from that practice, but only for same-sex couples who marry. ... Accordingly, Edie Windsor now brings this action to recover the federal estate tax that she was forced to pay in violation of the Constitutional guarantee of equal protection of the law. ..."

"Although the [federal] estate tax marital deduction applies on its face to all lawfully married couples, same-sex couples alone are denied its benefits by operation of DOMA. DOMA provides, in relevant part, that '[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife. ..."

Solely because of the operation of DOMA, the Internal Revenue Service ("IRS") has determined that the estate of a decedent whose surviving spouse is a
person of the same sex as the decedent is not entitled to the marital deduction. ... There can be no dispute that if 'Thea' were instead 'Theo,' her
estate would have passed for the benefit of Edie tax-free. Solely because Edie and Thea were both women, Thea's estate was denied the marital deduction. ..."

Despite the sweeping impact of DOMA, the federal government does not have a rational basis for, much less a compelling interest in, enforcing this statute. According to the House of Representatives' Report on DOMA ... Congress put forward four rationales for treating an individual married to a person of the same sex differently from an individual married to a person of a different sex. All of them are irrational."

  • "First, Congress claimed that DOMA advances the government's interest in defending and nurturing the institution of traditional heterosexual marriage. ... This so-called rationale simply restates the government's intent to discriminate against same-sex couples and provides no independent justification for the government's discriminatory action. By failing to recognize Thea and Edie's marriage, the federal government does nothing to "nurture" the institution of marriage; rather, it minimizes and denigrates a loving, committed relationship that should serve as a model for all couples, whether homosexual or heterosexual."

  • "Like the first rationale, Congress's second justification for DOMA, advancing the government's interest in defending traditional notions of
    morality, is yet another form of discrimination cloaked in the rhetoric of government interest. Discrimination for its own sake is not a legitimate government interest."

  • Congress claimed, as its third rationale, that DOMA advances the government's interest in protecting state sovereignty and democratic self-governance. ... Yet DOMA hinders rather than protects state sovereignty, because it refuses to respect state sovereign decisions regarding what marriages to recognize."

  • "The federal government's final rationale for enacting DOMA is that the law advances the government's interest in preserving scarce government
    resources. ... However, according to the Congressional Budget Office, the recognition of the marriages of same-sex couples will increase annual net federal revenue rather than deplete 'scarce government resources'. ..."

"Consequently, Edie, ... has been harmed because her inheritance has been reduced by $363,053.00 while the inheritance of a similarly situated surviving spouse from a heterosexual marriage would not have been reduced. ..."

"Because DOMA, as applied by the IRS, requires this disparity of treatment with regard to Thea Spyer's estate, it creates a classification that singles out one class of valid marriages -- those of same-sex couples -- and subjects persons in those marriages to differential treatment compared to other similarly situated couples without justification in violation of the right of equal protection secured by the Fifth Amendment to the Constitution of the United States." 4

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This topic continues...

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jamie McGonnigal, "GLAD, ACLU File New Federal Challenges to DOMA." Talk About Equality, 2010-NOV-08, at:
  2. Windsor v. United States, 10-cv-08435, U.S. District Court, Southern District of New York (Manhattan).
  3. "Edie Windsor and ACLU Challenge Defense of Marriage Act," ACLU Videos, You Tube, at:
  4. "Preliminary Statement: Edith Schlain Windsor v. United States," United States District Court Southern District of New York, 2010-NOV-09, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > Windsor v. U.S. > here

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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JUL
Latest update: 2012-NOV-26
Author: B.A. Robinson

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