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Edie Windsor Skips 2nd Cir, Files DOMA Challenge with SCOTUS

By Robyn Hagan Cain on July 16, 2012 4:02 PM

There’s officially a second Defense of Marriage Act (DOMA) challenge vying for Supreme Court review.

Monday, Edie Windsor filed a petition for certiorari with the Nine seeking the return of more than $300,000 in estate taxes that she was forced to pay after her spouse died, reports the Huffington Post.

Edie Windsor and Thea Spyer were together for 44 years. They got engaged in 1967, and were married in Canada in May 2007. Two years later, Thea passed away, after living for decades with multiple sclerosis.

Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes. Because the federal government did not recognize their marriage, the IRS taxed Windsor's inheritance from Spyer.

Windsor sued to recover $353,053 in federal estate tax she was not allowed to claim because her marriage was not legally recognized due to DOMA. District Judge Barbara Jones ruled in Windsor's favor in June, and ordered the government to return the money. Judge Jones concluded that the DOMA conflicts with the states' rights to regulate marriage, and "such a sweeping federal review in this arena does not square with our federalist system of government."

Windsor seems to be skipping Second Circuit out of concern that the traditional path to the Supreme Court demands more time than she can afford at her advanced age, reports the Advocate.

"Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition," her attorney, Roberta Kaplan, announced in a press release. "Because the District Court's ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime."

Between the Gill v. OPM petition, Windsor's petition, and the Golinski v. OPM challenge pending before the Ninth Circuit Court of Appeals, it seems likely that the Supreme Court will hear a DOMA challenge during the 2012 Term.

August 27, 2012 Editor's Note: Edith Windsor is simultaneously pursuing appeals before the Second Circuit and the Supreme Court and this post has been edited accordingly. Though Ms. Windsor filed a petition for certiorari with the U.S. Supreme Court in July, as of this date, the Second Circuit is scheduled to hear oral arguments in her case on September 27.

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