March 2, 2012
On February 23, 2011, Attorney General Eric Holder announced the Department of Justice would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA") in two pending cases challenging that section of the Act: Windsor v. United States (S.D.N.Y.) and Pedersen v. Office of Personnel Management (D. Conn.). DOMA's Section 3 defines marriage for all federal purposes as a "legal union between one man and one woman." In doing so, it prevents the federal government from recognizing same-sex marriages, even where those marriages are valid under state law. This panel will explore the ramifications of Holder's important announcement and Speaker Boehner's response that the House would step in to defend the constitutionality of Section 3 of DOMA. Our panel will include renowned litigators, Roberta Kaplan and James Esseks, who represent Edith Windsor, the 81-year-old widow whose suit arose when she was required to pay $350,000 in federal estate taxes as a result of the federal government's refusal to recognize her marriage. Kaplan and Esseks will discuss the various legal and strategic issues that have arisen in Windsor v. United States. We will hear from one of the nation's top appellate lawyers, Paul Smith, who successfully argued Lawrence v. Texas, the landmark U.S. Supreme Court case invalidating statutes criminalizing adult consensual private sexual intimacy. Smith currently represents the plaintiffs in Pedersen, whose marriages are recognized under the laws of Connecticut, Vermont and New Hampshire. DOMA bars these plaintiffs from securing a variety of federal benefits for, or from, their same-sex spouses. Smith will discuss various aspects of the Pedersen case as well as the appellate issues in play in Gill v. Office of Personnel Management, another case in which Smith is counsel. In Gill, now pending in the First Circuit, the trial judge held, on summary judgment, that DOMA's Section 3 was unconstitutional with respect to the claims asserted by the plaintiffs in that case. We will also hear from prominent constitutional law scholar Kenji Yoshino, who will explore the equal protection issues raised by Holder's "heightened scrutiny" analysis, the separation of powers issues raised by Holder's refusal to defend a Congressional statute, and the federalism issues raised by DOMA's intrusion into a matter traditionally left to the states.
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