83-year-old asks Supreme Court to review gay marriage ban

Mon Jul 16, 2012 6:33pm EDT

Two men kiss as they sit in a riverside park in New York, May 9, 2012. REUTERS/Lucas Jackson

Two men kiss as they sit in a riverside park in New York, May 9, 2012.

Credit: Reuters/Lucas Jackson

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(Reuters) - An ailing 83-year-old lesbian asked the Supreme Court on Monday to hear her legal challenge against a federal law that defines marriage as a union between a man and woman, attempting to place her case on a fast-track to the top court.

The suit, filed by Edith Schlain Windsor in 2010, targets the Defense of Marriage Act, a law passed by the U.S. Congress in 1996 that denies federal benefits to lawfully married same-sex couples.

Windsor's petition attempts to bypass the U.S. Court of Appeals, which is slated to hear the case in September.

With Windsor's filing, there are three petitions pending before the Supreme Court over the constitutionality of the Defense of Marriage Act, an issue the high court could take up in oral arguments as early as next spring, said Windsor's lawyer Roberta Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

"This case presents a question of exceptional national importance: the constitutionality of a statute, the Defense of Marriage Act ('DOMA'), that daily affects the lives of thousands of Americans," the petition said.

In June, a New York district court ruled in Windsor's favor, finding that a central provision of the law discriminates against married same-sex couples. The case is now on expedited appeal before the 2nd U.S. Circuit Court of Appeals.

But Windsor's lawyers argue that premature review of her case by the Supreme Court is warranted since the issue is already before the court. Also, Windsor suffers from a heart condition that could end her life before the case is resolved.

The American Civil Liberties Union originally filed the suit in New York on behalf of Windsor, a former computer programmer who married Thea Clara Spyer in Toronto, Canada, in 2007. The two were engaged in 1967.

Spyer died in 2009 after a long battle with multiple sclerosis, leaving her property to Windsor. Because the marriage was not recognized under federal law, Windsor had to pay more than $363,000 in federal estate taxes, according to the suit.

Six states have legalized same-sex marriage since DOMA went into effect, including New York in 2011. But federal law and programs do not recognize those marriages because of DOMA.

Windsor's attorneys argue that the federal law violates the 14th Amendment of the U.S. Constitution which prohibits states from denying people equal protection under the laws.

Federal courts in New York, California and Massachusetts all found the law unconstitutional for different reasons, applying varying standards of legal analysis.

The Republican-controlled House of Representatives, through its Bipartisan Legal Advisory Group (BLAG), is defending the law, which the Obama administration has largely abandoned. President Barack Obama in 2011 instructed the Justice Department to stop defending the law in courts, finding it unconstitutional.

Paul Clement, a lawyer for BLAG, did not immediately respond to a request for comment on Windsor's petition. (Reporting by Terry Baynes; Editing by Vicki Allen)

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