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DOMA challenged in estate tax case, one of the battlegrounds over the law

Breaking Glass Pictures

Edith Windsor, left, and Thea Spyer, partners for 44 years until Spyer's death in 2009, in an undated photograph. Windsor won a case against the Defense of Marriage Act in a district court, but that ruling is being challenged by the law's proponents in the U.S. House.

As same-sex couples wait for the Supreme Court to decide if it will hear one of five challenges to a law that bans federal recognition of gay marriage, opening arguments were heard Thursday in one such case in New York.

The case before the U.S. 2nd Court of Appeals concerns Edith Windsor and Thea Spyer, a lesbian couple who lived together in New York City for 44 years and formally married in Canada in May 2007. While this case is still in earlier stages of the court process, attorneys have also asked the nation’s top court to bundle the case with the others in the legal battle against the Defense of Marriage Act across the nation.

The state of New York recognized the marriage of Windsor and Spyers, but federal law did not because of the Defense of Marriage Act, which restricts the definition of marriage to a union between a man and a woman.

When Spyer passed away in 2009, Windsor was hit with $363,053 in federal estate taxes. Had they been considered spouses under federal law, she would have assumed Spyer’s assets, including their home, without incurring estate taxes.

Windsor sued the government in November 2010.

In June, U.S. District Judge Barbara Jones in Manhattan ruled in Windsor’s favor, and declared the 1996 DOMA law unconstitutional, by discriminating against same-sex couples. That decision prompted the current challenge by proponents of the law.

The Supreme Court has been asked to hear five different challenges to DOMA, including the Windsor case, in their next session, which opens Monday.

"It is critically important for the U.S. Supreme Court to hear one or more of the DOMA cases," said Susan Sommer, director of constitutional litigation at Lambda Legal. "In addition to being barred from the protections, rights and benefits afforded under 1,138 federal laws, it is demeaning to married same-sex couples and their families to have their federal government treat them as legal strangers."

In their next term, the justices could decide to take up one or more of the cases, none of them or simply delay considering the issue indefinitely.

However, in comments last week, Justice Ruth Bader Ginsburg said she believes the Defense of Marriage Act will reach the Supreme Court within the coming year.

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Each of the five cases that have been successful in district court challenges of DOMA’s Section 3 — the portion that defines marriage as heterosexual — that are now at various stages of appeal in circuit courts.

Each focuses on different federal benefits that are currently provided for people in traditional marriages, but not for those in same-sex marriages.

The Defense of Marriage Act was passed by Congress and signed by President Bill Clinton after it appeared in 1993 that Hawaii might legalize gay marriage.

Since then, many states have banned gay marriage through amendments to their constitution, but six have approved them, including Massachusetts and New York.

In Feb. 2011, the U.S. Justice Department under guidance from President Barack Obama has said it would no longer defend DOMA in court because they believe it to be unconstitutional.

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As a result, the Bipartisan Legal Advisory Group of the U.S. House of Representatives is spearheading appeals to uphold DOMA against challenges, acting on behalf of the legislative body.

Lawyer Paul Clement, speaking on behalf of bipartisan group on Thursday told the appeals court that the Defense of Marriage Act was consistent with the intention of Congress to continue "preserving programs the way they've always been — not opening these programs to others."

NBC's Kari Huus and Miranda Leitsinger and The Associated Press contributed to this report. 

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