Foley Hoag Weighs in on Historic US v. Windsor DOMA Case, Files Brief Urging Supreme Court to Overturn 1996 Law

March 25, 2013

Foley Hoag LLP has filed an amicus brief with the Supreme Court urging it to overturn the 1996 Defense of Marriage Act (DOMA), arguing that the law discriminates against same-sex couples by singling them out for exclusion from federal benefits.

Foley Hoag filed the brief in support of Edith Schlain Windsor’s 2010 lawsuit seeking to overturn a key provision of DOMA. Windsor was forced to pay $360,000 in federal taxes when her partner of 40 years died, even though the two were legally married in Canada and their home state of New York recognized marriages from foreign jurisdictions. The Supreme Court is scheduled to hear arguments in the case, United States vs. Windsor, on March 27.

The Foley Hoag brief, by partner Ara Gershengorn and associate Catherine Deneke, represents former U.S. cabinet secretaries, commissioners, and senior administrative agency officials who have firsthand experience with DOMA. It argues that DOMA has imposed a uniform prohibition against benefits for married same-sex couples but defers to state laws in virtually every other aspect of marriage. That, the brief said, violates the Constitution’s guarantee of equal protection under the law.

“The former U.S. officials represented by our brief maintain that DOMA singles out marriages of same-sex couples for exclusion from federal benefits. DOMA’s defenders claim that DOMA creates a single standard rather than a patchwork of state laws. However, in every other facet of determining a married couples’ eligibility for federal benefits, the federal government defers to that exact same patchwork. The law has clearly singled out married same-sex couples for discrimination,” said Gershengorn.

The Windsor amicus brief positions Foley Hoag among a large group of law firms, corporations, the U.S. Department of Justice and state governments urging the Supreme Court to overturn DOMA. Foley Hoag is among more than 278 amici backing Windsor, who filed a suit in 2010 challenging the law and seeking a refund on estate taxes after her wife passed away.

In addition to filing the brief in the Windsor case, Foley Hoag is part of the legal team representing seven same-sex couples married in Massachusetts and three surviving spouses of those marriages. Their lawsuit, Gill et a. v. Office of Personnel Management, et al., contends that DOMA's Section 3 unconstitutionally denies same-sex couples federal spousal benefits, such as Social Security survivor benefits and the ability to file joint tax returns. That case resulted in the first federal circuit court decision striking down DOMA as unconstitutional.

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