NY Attorney General Files Legal Challenge to Defense of Marriage Act

By Jill Colvin on July 26, 2011 2:32pm 

New York Attorney General Eric Schneiderman has taken action to challenge the Defense of Marriage Act.
New York Attorney General Eric Schneiderman has taken action to challenge the Defense of Marriage Act.
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Frank Franklin II

MANHATTAN — New York Attorney General Eric Schneiderman is taking on the Defense of Marriage Act, arguing that the federal law that stands in the way of gay rights is unconstitutional.

Schneiderman filed papers with the U.S. District Court for the Southern District of New York on Tuesday, two days after gay marriage became legal in New York State and a day after he was named among the defendants in a lawsuit by a conservative group seeking to overturn the state's gay marriage law.

The 33-page amicus brief argues that DOMA, which defines marriage as a union between a woman and a man, violates same-sex couples’ right to equal protection under the law and "discriminates based on sex and sexual orientation."

“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,” Schneiderman said in a statement.

“My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers,” he said.

The papers were filed on behalf of Edith "Edie" Windsor, who spent half her life living in Greenwich Village and married her partner, Thea Spyer, in Canada in 2007.

When Spyer died two years later due to complications from a heart condition and a 30-year battle with multiple sclerosis, the US government refused to acknowledge the couple’s marriage, forcing Windsor to pay more than $350,000 in federal taxes on Spyer's estate — fees that heterosexual widows are generally exempt from.

Windsor's suit challenges DOMA's constitutionality and seeks a refund on the estate taxes.

Congressman Jerrold Nadler, the bill's author and lead sponsor of a House bill to repeal DOMA, commended Schneiderman for what he called “his bold action on behalf of the people of New York.”

“Through DOMA, the federal government is actively discriminating against legally married same-sex couples, and it is right for the state to come to their defense by seeking to strike down that law in court,” he said in a statement.

Greenwich Village resident Edith
Greenwich Village resident Edith "Edie" Windsor, 81, filed a lawsuit against the federal government in November for not recognizing her gay marriage to her partner of 46 years.
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DNAinfo/Tara Kyle

City Council Speaker Christine Quinn also praised the move as “the appropriate step to protect and defend the laws of the state of New York.”

Same-sex marriage officially became legal in New York Sunday, when hundreds of jubilant couples descended on the City Clerk's Office to wed.

On Monday, the conservative New Yorkers for Constitutional Freedoms challenged the state’s Marriage Equality Act, claiming that state legislators and Gov. Andrew Cuomo had operated behind closed doors to get the bill passed.

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