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Sunday August 30th, 2015 10:37PM

NY judge: Anti-gay marriage law unconstitutional

By The Associated Press
NEW YORK - A federal judge in Manhattan joined a growing chorus of judges across the country Wednesday by striking down a key component of a federal law denying benefits to partners in a gay marriage.

U.S. District Judge Barbara Jones said the federal Defense of Marriage Act's efforts to define marriage "intrude upon the states' business of regulating domestic relations."

She said, "That incursion skirts important principles of federalism and therefore cannot be legitimate, in this court's view."

The judge said the law fails because it tries to re-examine states' decisions concerning same-sex marriage. She said such a sweeping review interferes with a system of government that places matters at the core of the domestic relations law exclusively within the province of the states.

The ruling came in a case brought by Edith Windsor, a woman whose partner died in 2009, two years after they married in Canada. Because of the federal law, Windsor didn't qualify for the unlimited marital deduction on her late spouse's estate and was required to pay $363,053 in federal estate tax. Windsor sued the government in November 2010.

As part of her ruling, Jones ordered the government to reimburse Windsor the money she had paid in estate tax.

The government declined to comment through Ellen Davis, a spokeswoman for government attorneys in Manhattan.

Civil rights groups praised the ruling. The American Civil Liberties Union included comments from Windsor in its release.

"It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers," Windsor said of her 44-year relationship with Thea Spyer.

The ruling came just days after a federal appeals court in Boston found the law's denial of federal benefits to same-sex couples unconstitutional. The decision by the 1st U.S. Circuit Court of Appeals affirmed a federal judge's 2010 ruling. In California, two federal judges found this year that the law violates the due-process rights of legally married same-sex couples. The issue is likely to reach the Supreme Court.

The law was passed in 1996 after a 1993 decision by the Hawaii Supreme Court made it appear Hawaii might legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004 and continuing with Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington state and the District of Columbia. Maryland and Washington's laws aren't yet in effect and might be subject to referendums.

James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender Project, said the ruling "adds to what has become an avalanche of decisions that DOMA can't survive even the lowest level of scrutiny by the courts."

Brian Silva, executive director of Marriage Equality USA, called the ruling "another example of the trend of the judiciary continuing to see that treating same-sex couples differently than their heterosexual counterparts is not only wrong but goes against the laws of equality and justice here in the United States."

State Attorney General Eric T. Schneiderman called the decision "a major step forward in the fight for equality."

In court papers filed last August, a lawyer for the Bipartisan Legal Advisory Group of the U.S. House of Representatives defended the role of the federal government in defining marriage.

"While it is true that regulating the details of traditional marriage historically has been left to the states, it also is true that the federal government has been involved with and injected itself into marriage law when states have deviated from the traditional definition. Thus, for instance, the United States Congress banned polygamy in United States territories when faced with widespread plural marriage in the Utah Territory," wrote attorney Paul D. Clement on the group's behalf.

In another point in his papers, Clement noted that multiple studies concluded that a high number of people who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction. In a footnote, he pointed out that Windsor had once been married to a man, a fact that she responded to in an affidavit of her own in August, saying that her brief 1951 marriage didn't indicate she had a choice about her sexual orientation.

"Although I tried to make a `choice' about my sexual orientation by getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really had no choice at all," she wrote.

She added that in the "context of the homophobia that was so prevalent in the 1950s, I certainly did not want to be a `queer.' Instead, I wanted to live a `normal' life."

She noted that she parted on good terms with her ex-husband, who married another woman and had a family.

"He telephoned me on my 70th birthday in 1999 to wish me well," Windsor said.
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