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February 24, 2011 6:13 PM

Q&A: Paul Weiss Partner on the Future of DOMA

Posted by Victor Li

The Justice Department's announced decision on Wednesday  that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act in two cases challenging the act sent shockwaves throughout the legal and political worlds. Section 3 of DOMA, which was signed into law in 1996, defines marriage to be "a legal union between one man and one woman as husband and wife."

We reached out to Roberta Kaplan, a litigation partner at Paul, Weiss, Rifkind, Wharton & Garrison, to talk about the impact and consequences of the Obama administration's decision. Kaplan represents plaintiff Edith Windsor in Windsor v. United States, one of two cases in recent months to challenge the constitutionality of Section 3 of DOMA. Windsor, an 81-year-old widow, brought her suit in Manhattan federal district court in November after she was forced to pay $350,000 in federal estate taxes because of the government's refusal to recognize her marriage to Thea Spyer. (The second case, Pedersen v. The Office of Personnel Management, was filed in Connecticut federal district court in November.)

The Justice Department has defended the constitutionality of DOMA ever since President Obama took office--and despite repeated calls by the president for a full repeal of the act. Were you surprised that the administration suddenly reversed course and decided it would no longer defend Section 3 of DOMA?

Yes and no. On the one hand, it certainly was a change in course for the Department of Justice and the [Obama] administration. On the other hand, as we explained when we filed this case, we believed that our client Edie Windsor and her late spouse Thea Spyer were denied equal protection of the laws because of DOMA and that it would not be possible for the government to justify the unequal treatment that occurred. The president and the Department of Justice have now recognized that.

Attorney General Eric Holder's statement is limited to section 3 of DOMA. Is the decision based on the fact that Section 3 is the one at issue in the Windsor and Pedersen cases? And what does this mean for the other sections of DOMA?

The pending cases in the Second Circuit that resulted in yesterday's decision by the attorney general involve only Section 3 of DOMA and raise the issue whether the federal government is required to recognize otherwise valid marriages of same-sex couples who were married or live in jurisdictions that recognize those marriages. The arguably broader question of Section 2 of DOMA--whether other states (as opposed to the federal government) that currently do not recognize such marriages must recognize them--is not at issue in the pending cases.

Holder also said, "classifications based on sexual orientation warrant heightened scrutiny." The Supreme Court has used the much more deferential standard of rational basis to strike down laws restricting the rights of gays and lesbians (Lawrence v. Texas and Romer v. Evans). What standard of review would you like to see adopted, and are you concerned that this might galvanize the opposition?

We obviously believe that heightened scrutiny should apply. When you look at the factors that the Supreme Court has held are applicable--minority status, history of discrimination/prejudice, lack of any relationship between being gay and one's ability to contribute to society--it's nearly impossible to credibly argue that laws that treat gay men and lesbians differently should not be subject to some form of heightened scrutiny. The attorney general explicitly recognized this in his statement of [Wednesday] and conceded that it led to the decision not to defend. But as the Lawrence and Romer cases have held in other contexts and as at least two other federal district courts have already held in the context of DOMA, even if the lowest standard of rational basis applies, there is still no legitimate reason to explain why our client had to pay a $350,000 estate tax bill simply by virtue of the fact that she was married to a woman, instead of a man.

Now that the Justice Department has decided it will no longer defend Section 3 of DOMA, are there any parties that can step in and defend it?

While I'm no expert on the political process, it is my understanding that Congress will now have an opportunity to retain counsel to defend the statute.

What are the practical effects of the Justice Department's decision? Are they largely symbolic (especially if another party steps in and takes its place)? Or are there major implications for DOMA cases going forward?

For the first time in our nation's history, our federal government has acknowledged what we all know to be true--namely, that our Constitution guarantees equal protection of the laws to everyone, including gay men and lesbians, and that all marriages are equal in the eyes of the law. [The Justice Department's] announcement is one that will be written about as part of the proud saga of our country and its constitution.

As we saw in Perry v. Schwarzenegger, when the government declines to defend a law in court, it can lead to all sorts of procedural headaches. Is this situation different? And if so, how is it different?
I don't expect to see any of the standing issues that are currently being litigated in the Perry case. I think most observers assume that some members of Congress will retain counsel to defend the statute. Moreover, there can be no question that our client, Edith Windsor, having unconstitutionally been forced to pay a $350,000 estate tax bill, has standing to challenge the constitutionality of DOMA.

Is it rare for a government to refuse to defend laws in court? Do you think it is notable that the highest-profile examples of this have been in same-sex marriage cases?

I believe the attorney general himself said in his statement that this was a rare step for the Department of Justice. It is hardly surprising that it has occured in the context of equal rights for gay men and lesbians since again, it is nearly impossible to come up with a legitimate reason why the law should treat gay men and lesbians differently.

Where does this leave your client, Edith Windsor? Are you concerned that bringing in new lawyers and law firms to defend DOMA might actually result in a delay that wouldn't have happened had the Obama administration decided to continue defending DOMA?

Our client Edie Windsor is 81 years old, has a serious heart condition, and is not getting any younger. We look forward to moving ahead with her case as expeditiously as possible so that she gets the justice that she so richly deserves.

What is the current status of Edie Windsor's case? Were you close to trial?

The government was supposed to file a brief on March 11. It is my understanding that they still intend to make a filing on that date, although it will obviously be consistent with the attorney general's statement.

How did she react to the Justice Department's decision?

It is probably far better for me to use her own words. Here is what she said [on Wednesday]: "There are not words to express my feelings given that President Obama and the Department of Justice have done the right thing by recognizing this fundamental principle that all people and all marriages are entitled to be treated equally under the United States Constitution. My only regret is that my beloved late spouse, Thea Spyer, isn't here to share in this historic moment. But in my heart, I feel that she knows.

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I know the Republicans in Congress are going to want to defend DOMA in court, but really do they want to? Do they want to go against an 81 year old widow? Spend the resources of the government to defend something that won't make any difference to the average American who needs a job? Really? Why would they do such a thing when it can so easily be thrown in their faces in the next election? Instead of working on getting middle class and poor families on their feet, they'd be spending their time and tax payer's money on a lawsuit against a little old lady! NOT a good position to take. Better to let everyone in a LEGAL relationship marry if they want to, as they aren't breaking any laws, and let the states collect the marriage revenue!

DOMA is indefensible on its face. The House has just adopted a policy of cutting all expenses to the bone, whatever the social or economic cost to the country. It would be the ultimate act of hypocrisy for Congress to now direct spending money on this case.

Since most people in America still want what is best for their children (remember children only come from an X and a Y chromosome), and the Constitution is based on *the people* not *the states*, it is evident that any politician who defends a law that has *not* been ruled unconstitutional, will be re-elected in a landslide. Remember it is the Supreme Court, not the Executive branch, that has the power of judicial review.

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