New York Gay Widow Fights for Estate-Tax Refund After 40-Year Union

Edith Windsor's case for estate-tax refund challenged by House Republicans.

April 19, 2011, 10:10 AM

April 19, 2011— -- Edith "Edie" Windsor is the human face behind one of 12 pending lawsuits that challenge the U.S. Defense of Marriage Act (DOMA) in federal court. She's also the first target of the new high-powered private attorney hired by House Republicans to uphold the law.

The New York woman, 81, sued the federal government last year, demanding recognition of her marriage to her late spouse, Thea Spyer, and the same rights and privileges afforded to heterosexual couples. The two exchanged vows in Toronto, Canada, in 2007 after spending 40 years together.

"If you live together for 42 years and you love each other all those years and take care of each other all those years, how could marriage be different? It turns out it's different and you don't know why," Windsor said in a video statement. "It has to do with our dignity altogether, our dignity as human beings."

But after two joyful years officially married -- a union recognized by their home state of New York -- Windsor was effectively slapped in the face by the federal government when Spyer passed away in 2009, she said.

"The federal government taxed what I inherited from Thea as though we were strangers rather than spouses," she said of DOMA, which defines marriage as between a man and a woman, in November. "The law effectively imposes a tax on being gay."

Windsor was forced to pay more than $363,000 in estate taxes, which are not incurred by married heterosexual spouses upon death.

The Obama administration said in February that it would no longer defend the 1996 act in the Windsor case and 11 others. Attorney General Eric Holder said the Justice Department concluded laws that treat gays and lesbians differently deserve a heightened form of legal scrutiny, which, in turn, would result in finding the law unconstitutional.

House Republicans, however, have argued the Marriage Act deserves a rigorous defense in court and that judges should ultimately decide on its constitutionality. House Speaker John Boehner of Ohio Monday named Paul D. Clement, the former solicitor general for President George W. Bush, to mount a defense of the statute because administration lawyers have stepped aside.

Social conservatives, who have long complained that the administration has not adequately defended DOMA, applauded the effort as a commitment to holding the line against same-sex marriage.

But the Windsor case also appears to put Republicans in an awkward position on taxes, with Clement essentially arguing to uphold the estate tax on a married couple. Boehner has said "it is fundamentally wrong for Americans who are taxed almost every waking moment to also be taxed upon their death."

A new CNN/Opinion Research poll released today found for the first time that a majority of Americans now favor legal recognition of same-sex marriage, with support strongest among people under 50 and among women.

DOMA Case Centers on Taxes

"I am very disappointed that the House of Representatives has decided to intervene in my case in order to try to prevent me from obtaining a refund of the $363,000 in estate taxes that I should never have had to pay in the first place," Windsor said in a statement.

Clement and two other attorneys at King & Spaulding filed a motion late Monday to intervene in the Windsor case, which is pending in a federal court in New York.

The motion was filed with the purpose of defending the constitutionality of Section III of DOMA "from attack on the ground that it violates the equal protection component of the Fifth Amendment Due Process Clause."

"This action by the House will ensure that this law's constitutionality is decided by the courts, rather than by the president unilaterally," Boehner said in a statement last month announcing the appointment of congressional lawyers to take the case when Justice Department lawyers stepped aside.

DOMA, which was passed by a Republican House and Senate and signed into law by Democratic President Bill Clinton in 1996, also denies same-sex couples certain Social Security benefits and other rights afforded to married straight couples.

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