NEW YORK – Eric T. Schneiderman, the New York State attorney general, filed a legal brief Tuesday against the 1996 Defense of Marriage Act for infringing upon the federal rights of married gay couples.
The brief filed in U.S. District Court in Manhattan argues that DOMA is unconstitutional because it denies gay and lesbian couples equal protection under the Constitution.
New York became the sixth and most populous state to legalize gay marriage following the passage of the Marriage Equality Act on June 24. Prior to the legislation, the Empire State had already recognized same-sex marriages performed in other states.
DOMA, enacted under the Clinton administration, defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize same-sex marriages from another state. The federal law gives each state the “sole sovereign prerogative to define and regulate marriage.”
In the brief, Schneiderman contends that DOMA would intrude upon the New York's authority to define marriage and block the desired effect of its gay marriage law.
The New York State attorney general also alleges that the federal marriage act should also be struck down since it discriminates on the basis of sexual orientation.
“For these reasons DOMA should be subjected to heightened scrutiny under the equal protection of the 5th amendment,” Schneiderman writes in the brief.
The brief cited the case of Windsor v. United States in support of its call for change. In 2007, Edith S. Windsor married her longtime partner, Thea Spyer, in Canada. The two lived in New York City and when Spyer died in 2009 the federal government refused to recognize the marriage and collected taxes on her inheritance. Windsor filed a lawsuit questioning the fairness of DOMA and seeking a refund on the taxed inheritance.
President Obama has announced his support to repeal DOMA.
In February, Obama told the Department of Justice to stop defending the constitutionality of DOMA in federal court, a move that was strongly criticized by Christian and conservative groups.
Earlier this month, the DOJ filed a brief to intervene in Golinski v. Office of Personnel Management, which is seeking to have DOMA ruled unconstitutional.