In early December 2012, the U.S. Supreme Court agreed to consider whether the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection as applied to same sex couples who are legally married under state law. Section 3 of DOMA defines "marriage" for purposes of any federal statute or regulation as being a legal union only between one man and one woman. In 2011, however, the Obama administration announced that it will no longer defend the constitutionality of DOMA.

Now the U.S. Supreme Court will review a federal estate tax case, Windsor, CA-2, 2012-2 ustc ¶60,654, in which the Second Circuit Court of Appeals held that a surviving same-sex spouse was entitled to the estate tax marital deduction. If the Supreme Court strikes down DOMA, it could open the opportunity for same-sex married couples to file amended estate returns, possibly for a three-year period, as well as open up opportunities for filing joint income tax returns and claiming other federal tax benefits.

Windsor

Because of DOMA, the surviving same sex spouse in the Windsor case did not qualify for the unlimited marital deduction and paid, in her capacity as executor of the estate, $363,000 in federal estate tax. The survivor subsequently filed suit in federal district court for a refund. The federal district court found that Section 3 of DOMA violated the equal protection clause of the Fourteenth Amendment because there was no rational basis to support it.

On appeal, the Second Circuit found that Section 3 of DOMA requires heightened scrutiny because homosexuals comprise a class that is subject to heightened scrutiny. The Second Circuit further found that Section 3 was unconstitutional because it was not substantially related to an important government interest.

Oral arguments before the Supreme Court are expected to occur in early 2013 on issues including:

• Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection ofthe laws as applied to persons of the same sex who are legally married under the laws of their state; and
• Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide this case; and
• Whether the Bipartisan Legal Advisory Group has Article III standing in the case.