The United States Supreme Court will look at the controversial Defense of Marriage Act tomorrow, in a case brought by long-time New Yorker Edith "Edie" Windsor.
Windsor was forced to pay $363,053 in estate taxes when her partner of more than 40 years passed away in 2009.
Windsor and her partner, Thea Spyer, were married in Toronto in 2007, and at the time of Spyer's death, same-sex marriages performed in other jurisdictions were recognized in New York, even though same-sex marriages were not yet legal in-state.
However, because estate taxes are federal, Windsor did not have the same rights under federal law that a heterosexual widow would have: namely, inheriting from a spouse untaxed.
New York Attorney General Eric Schneiderman filed an amicus brief on behalf of the state of New York and a coalition of 13 other states, urging the Supreme Court to overturn the Defense of Marriage Act on the grounds that it infringes on state laws.
"[This case] matters a great deal to New Yorkers," Schneiderman told Brian Lehrer on WNYC on Monday. "In addition to discriminating against individuals, it discriminates against the states that recognize same-sex marriage because it says that... the federal government doesn't have to respect our marriages and provide married couples from New York with all the benefits that other... marriages get [and] it also says that other states don't have to respect our marriages."
"It's a matter of overreaching by Congress and overreaching by the federal government into an area that should be committed to the states as it always has been," Schneiderman added.
Schneiderman's argument frames the overturning of DOMA not as a legalizing of same-sex marriage, but rather as eliminating a ban on it. If the Supreme Court strikes down DOMA, it would not establish a right to same-sex marriage in every state, but the federal government would be obliged to provide equal rights to those marriages in states that do permit them.
"This is about discrimination against the state of New York and the nine other states and the District of Columbia that have same-sex marriage," Schneiderman told Lehrer.
Ez Cukor, an attorney at the New York Legal Assistance Group's LGBT Law Project, pointed to other rights conferred on heterosexual married couples but denied to same-sex couples, including the ability to take medical leave to care for a sick spouse.
"My colleague Virginia had a client who lost her job because she couldn't get [Family Medical Leave Act] leave," Cukor explained. "If she'd been married to someone of the opposite sex, federal law would have allowed her to take care of her sick spouse and return to her job."
Instead, Cukor says, the woman's employer let her go.
Cukor also explained that under New York state law, same-sex couples can be married in New York regardless of their status as citizens or non-citizens, but due to DOMA, a gay partner cannot file a green card application for his or her non-citizen spouse.
"It leaves people in the bind of having to live here without documentation, or having to leave," Cukor said. "The immigration issue is of particular concern in New York City where we have a large immigrant population."
The Supreme Court looked at another same-sex marriage case today: this one about Proposition 8, the California amendment that states that marriage can only be between a man and a woman.
While repealing DOMA would leave the issue up to the states to decide, ruling against Prop 8 in this case could make marriage a constitutionally protected right for all Americans.
The Court debated whether "regulating procreation through marriage" does indeed "serve the Government's interest," as the argument in favor of Prop 8 states: namely, that marriage should only be between people who can have children. The justices questioned this logic, with Justice Elena Kagan asking one of the attorneys, Charles Cooper, if it would be constitutional for a state to refuse a marriage license to a couple over the age of 55.
"Your honor, even with respect to couples over the age of 55, it is very rare that… both parties to the couple are infertile," Cooper responded.
Justice Kagan cut him off, however, saying, "I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."
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