On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Thursday, May 23, 2013.

Alright, this post is not as exciting as the title suggests. But, in March our highest court did hear arguments in the Defense of Marriage Act (DOMA) case, and that case has an interesting twist which could impact other divorce cases.

Edith Windsor and Thea Spyer were a lesbian couple in New York, and married in Toronto, Canada where it was legal. Two years later, Spyer died. While New York recognizes same-sex marriages, under DOMA the federal government can’t.

As a result, Windsor had to pay more than $363,000 in estate taxes. Had their marriage been treated the same as an opposite-sex marriage, she would not have had to pay any taxes. Windsor sued the government to get her money back.

A trial judge held part of DOMA violated the equal protection clause of the Fifth Amendment, and that Windsor should be repaid her taxes with interest. The court of appeals upheld the trial judge, and the government petitioned the Supreme Court to grant certiorari.

Then the train went off the tracks. President Obama ordered the Justice Department to stop defending DOMA in federal court. In response, Republicans in the House of Representatives ordered their own Bipartisan Legal Advisory Group (known as BLAG) to defend the statute.

BLAG’s ability to argue the case is a problem. If the parties agree the statute is unconstitutional, how can someone come in and take over the case. Is that really a “case or controversy” giving jurisdiction? This can happen in other family law cases when grandparents, guardians ad litem, attorneys ad litem and government agencies get involved.

So, the three big issues before the U.S. Supreme Court are whether:

(1) DOMA violates the 5th Amendment’s guarantee of equal protection as applied to a legally married same-sex person;

(2) Obama’s agreement that DOMA is unconstitutional deprives the U.S. Supreme Court of jurisdiction to decide this case; and

(3) BLAG can continue with the case after the Justice Department drops it.

You can follow the case here.

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