What happened that day in the driveway of a Hamptons beach house is as wrapped in complexity as it was a generation ago, though the contours have shifted right along with the evolution of attitudes and laws about same-sex couples. Today the question isn’t whether Thea and Edie could marry — as they finally did in 2007 — but how that marriage should be treated for tax purposes. It is a question that a phalanx of civil rights attorneys is asking the U.S. Supreme Court to answer in a case that they hope will alter federal law, specifically the much-debated Defense of Marriage Act, or DOMA.
When Thea died in 2009, Edie was presented with a gargantuan tax bill — more than $360,000, a figure derived primarily from the vast increase in value of the two homes — an apartment in Manhattan and a small weekend place in the Hamptons — that they’d purchased long ago. In a heterosexual marriage, a surviving spouse can usually shield up to $5 million worth of assets from the estate tax (the limit was $3.5 million when Thea died). But that deduction is not given to married gay couples because DOMA defines marriage as “a legal union between one man and one woman.”
Edie has already won the first round in her fight. A federal court in New York ruled last month that DOMA’s Section 3 — the portion that defines marriage — is unconstitutional and that she should be refunded the estate tax she paid.
Now her legal team — New York lawyer Roberta Kaplan joined by the American and New York Civil Liberties Union foundations — is looking to make the case a part of American legal history by presenting it to the Supreme Court, which is also being asked to take up two other big DOMA cases. Their opponent is formidable — the Bipartisan Legal Advisory Group, or BLAG — a congressional body helmed by famed lawyer and former George W. Bush administration solicitor general Paul Clement. The congressional entity handles DOMA cases because the Obama administration has said it will no longer defend the law.
In this legal contest, the two sides seem to be at war about more than a law — they seem in conflict over the central essence of the case. Clement, in his dense, potent legal filings, places Congress at the center of the case — not Thea and Edie. He argues that Congress was interested in defining marriage to ensure that children have parents of both sexes. He cites remarks by the Missouri Republican Congressman Todd Akin, who said in 2004 that “we all know from experience that kids are best off when they have a mom and a dad.”