Supreme Court Grants Certiorari To Defense Of Marriage Act Challenge in Estate Tax Case



At Lefstein-Suchoff CPA & Associates, LLC we assist those faced with various tax problems, such as IRS problems including IRS Audits.  To do so, we keep up to date with recent Court decisions and IRS Rulings.  In our last two posts and this current post we aim to share some of these with you.

The U.S. Supreme Court has agreed to consider if the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to same sex couples who are legally married under state law (U.S. Supreme Court Order List, December 7, 2012). The Court will review a federal estate tax case, Windsor v. United States, CA-2, 2012-2 ustc ¶60,654, in which the U.S Court of Appeals for the Second Circuit held that a surviving same-sex spouse was entitled to the estate tax marital deduction.

The Supreme Court also granted certiorari in Hollingsworth v. Perry, CA-9, 671 F.3d 1052. The Court will review whether the equal protection clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Section 3 of DOMA provides that for purposes of any federal statute or regulation, including IRS regulations, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. The Obama administration announced in 2011 that it will no longer defend the constitutionality of DOMA. The Republican-controlled U.S. House of Representatives formed the Bipartisan Legal Advisory Group to defend DOMA.

In Windsor, a long-time same-sex couple married in Canada in 2007. They had previously registered as domestic partners in New York City. One spouse died in 2009.

The survivor did not qualify for the unlimited marital deduction because of DOMA and paid, in her capacity as executor of the estate, $363,000 in federal estate tax. She subsequently filed suit in federal district court for a refund. The federal district court found that Section 3 of DOMA violated the equal protection clause of the Fourteenth Amendment because there was no rational basis to support it.

The Second Circuit found that Section 3 of DOMA requires heightened scrutiny because homosexuals comprise a class that has experienced a history of discrimination and, at this time, homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majority. Section 3 of DOMA, the Second Circuit further found, was not substantially related to an important government interest and violated Equal Protection. Therefore, Section 3 of DOMA was unconstitutional.

On December 7, 2012, the Supreme Court announced that it would review the Second Circuit’s decision in Windsor. Oral arguments are expected to be held in early 2013 on:

  • whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state;
  • whether the Executive Branch’s agreement with the court that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide this case; and
  • whether the Bipartisan Legal Advisory Group has Article III standing in the case.

If the Supreme Court strikes down DOMA, it could open the opportunity for same-sex married couples to file amended income and estate returns for any open years.

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