President Obama and Attorney General Holder say they will no longer defend Section 3 of DOMA in cases currently being litigated in federal court. But that does not mean that DOMA is gone.
The statement by Attorney General Holder goes on to say that the Executive Branch (which includes the Department of the Treasury, of course) will continue to enforce the law even though the administration will not continue to defend it in court. The administration certainly has the right to take the position that the law is unconstitutional, although it seems a bit strange to take that position and continue to enforce the law. Nonetheless, the administration’s position is that the law will remain in effect until it is repealed by Congress or declared unconstitutional by a final judicial ruling.
What does this mean for Edie Windsor, the plaintiff in one of the cases challenging DOMA in federal court? [Read the complaint here] Windsor is suing for a refund of estate taxes paid on the estate of her deceased spouse. Spouses are entitled to inherit from each other free of estate tax. A tax will be normally be paid on the death of the second spouse to the extent the estate was not needed for the support of the surviving spouse. If DOMA were not on the books, Edie Windsor would not have had to pay the IRS $363,000 in taxes.
Since the Executive Branch is still enforcing DOMA, that means that the case will have to be litigated to conclusion before Windsor knows whether she is entitled to the refund or not. And even if the Attorney General is not willing to defend DOMA, it seems likely that Congress will step in and defend the law.
Stay tuned . . .