Individual Seeks Supreme Court Review of DOMA in Estate Tax Refund Case

The United States of America was the defendant in the District Court and is an appellant in the Court of Appeals.

The Bipartisan Legal Advisory Group of the United States House of Representatives ("BLAG") was the intervenor-defendant in the District Court and is the intervenor-appellant in the Court of Appeals.

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In Massachusetts v. United States Department of Health & Human Services, originally filed on July 8, 2009, and decided along with Gill v. Office of Personnel Management, the First Circuit held that DOMA was unconstitutional under a "more careful" or "rigor[ous]" form of rational basis review. 682 F.3d 1, 11 (1st Cir. 2012). On June 29, 2012, BLAG -- the official legal advisory group for the House of Representatives, see, e.g., Rule I.11, Rules of the House of Representatives, 103 Cong. (1993) -- filed a petition for certiorari in that case. Nos. 12-13, 12-15. The Government then filed its own petition on July 3, 2012. Id.

In Golinski v. United States Office of Personnel Management, which began as an administrative proceeding by an employee of the federal court system in October 2008, the United States District Court for the Northern District of California held that strict scrutiny should be applied to DOMA because it discriminates on the basis of sexual orientation.² 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012). Under that standard, it held that DOMA was unconstitutional. Id. at 995. It also concluded that DOMA failed rational basis review. Id. at 1002. Golinski is currently on expedited appeal before the Ninth Circuit, Nos. 12-15409 and -0257, with oral argument scheduled to take place on September 10, 2012. On July 3, 2012, the Government filed a petition for a writ of certiorari before judgment in Golinski. No. 12-16.

In this case, petitioner filed suit in the United States District Court for the Southern District of New York. Applying only rational basis review, that court held that Section 3 of DOMA does not "pass constitutional muster." Pet. App. a13. Its decision is currently on expedited appeal to the Second Circuit, No. 12-2335, with oral argument currently scheduled to take place during the week of September 24, 2012.

1. The petitioner in this case is Edie Windsor, who recently celebrated her eighty-third birthday, and is the sole executor of the estate of her late spouse, Thea ("Thea") Clara Spyer. Edie and Thea first met in New York City in 1963. Despite the fact that there was virtually no foreseeable prospect for legal recognition of civil unions (not to mention marriage) between same-sex couples anywhere at the time, Edie and Thea became engaged to each other in 1967. They then spent the next forty-two years of their lives together, in both sickness and health.

In 1977, Thea was diagnosed with multiple sclerosis and she eventually became a paraplegic, confined to a wheelchair and requiring 24-hour care by Edie and a team of nurses. When Thea's doctors told them that Thea did not have much longer to live, Edie and Thea traveled to Toronto, Canada, and were legally married on May 22, 2007, a marriage that was recognized as valid under New York law.³ Two years later, in 2009, Thea died. After Thea's death, Edie suffered a heart attack and was hospitalized with stress cardiomyopathy -- an ailment known as "broken heart syndrome" -- which caused irreversible damage to her heart.

Thea left her entire estate for the benefit of Edie, her surviving spouse. Although New York State recognized Edie and Thea's marriage, the federal government did not. Solely because of DOMA, the Government imposed more than $363,000 in federal estate tax on Thea's estate, significantly reducing Edie's inheritance and painfully reminding Edie while she was grieving the loss of her spouse that the Government considered them to be legal strangers. It is undisputed in the record that if Ms. Windsor had been married to a man, the marital exemption provided by federal law would have applied, see 26 U.S.C. § 2056(a), and her federal estate tax bill would have been $0.⁴

2. On November 9, 2010, petitioner filed suit in the United States District Court for the Southern District of New York seeking a declaration that Section 3 of DOMA violates the equal protection guarantee secured by the Fifth Amendment to the United States Constitution and a refund of the federal estate tax levied on and paid by Thea's estate.

At the time petitioner filed suit, the Government took the position that DOMA must be defended and enforced.⁵ As a result of petitioner's case and another case filed near the same time still pending in the district court, Pedersen v. Office of Personnel Management, No. 3:2010-cv-01750 (D. Conn.), the Government changed course.

On February 23, 2011, just prior to the time that a responsive pleading was due to be filed in Ms. Windsor's case, the President and the Attorney General of the United States announced that they would no longer defend DOMA in a letter from the Attorney General to the Speaker of the House. Pet. App. a35-a44.

In his letter, the Attorney General noted that prior suits challenging DOMA had arisen "in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review." Pet. App. a36. By contrast, petitioner's suit was filed in the Second Circuit, which had not then (and has not yet) resolved the level of scrutiny that applies to laws that discriminate based on sexual orientation. For that reason, the Attorney General explained, petitioner's case "requires the Department [of Justice] to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue." Id. The Attorney General announced that the President and Attorney General had determined that heightened judicial scrutiny is the appropriate standard of review for government classifications based on sexual orientation and that, under that standard, Section 3 of DOMA is unconstitutional. Accordingly, the executive branch ceased to defend DOMA in petitioner's case. Id.

On April 18, 2011, in response to the Attorney General's announcement, BLAG filed a motion to intervene for the purpose of defending the constitutionality of Section 3 of DOMA. Ms. Windsor did not oppose BLAG's motion, which was subsequently granted. In light of concerns about Ms. Windsor's age and health, an expedited discovery and briefing schedule was established and cross-motions to dismiss and for summary judgment were submitted to the District Court on September 9 and September 15, 2011, respectively.

3. On June 6, 2012, the District Court denied BLAG's motion to dismiss and granted Ms. Windsor's motion for summary judgment. Pet. App. a1. It held that Section 3 of DOMA "is unconstitutional as applied" and awarded judgment to Ms. Windsor in the amount of $363,053, plus interest. Pet. App. a21.

In holding that DOMA violates the constitutional guarantee of equal protection, the court concluded that it was unnecessary to decide whether some form of heightened scrutiny should apply to classifications based on a person's sexual orientation because "DOMA's section 3 does not pass constitutional muster," even under the lowest form of rational basis review. Pet. App. a13. While acknowledging that the United States Court of Appeals for the First Circuit in Gill had recently applied a "more searching form" of rational basis review, the court concluded that DOMA was unconstitutional applying "established principles" of equal protection, which it explained as follows: "[A]t a minimum, this Court must 'insist on knowing the relation between the classification adopted and the object to be attained'. . . . [and] the government's asserted interests must be legitimate." Id. (citing Romer v. Evans, 517 U.S. 620, 632 (1996)). The court then considered, and rejected under the rational basis standard, each of the justifications offered by BLAG as well as those by Congress when it passed DOMA in 1996.

First, the District Court rejected the assertion that DOMA advanced the interests of "caution" and "nurturing the traditional institution of marriage" because "the decision of whether same-sex couples can marry is left to the states." Pet. App. a15. As a result, "whatever the 'social consequences' of [same-sex marriage] ultimately may be, DOMA has not, and cannot, forestall them." Id. at a16.

Second, the District Court found it "impossible to credit [DOMA's] justification" of promoting childrearing and procreation within heterosexual marriages because "DOMA has no direct impact on heterosexual couples at all" and thus has no significant "ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married." Id. at a16-a17.

Third, the District Court described the claim that DOMA was necessary to ensure uniformity in the distribution of federal benefits as "misleading" because the only uniformity that the federal government had ever previously sought was a uniform respect for state marriage laws, whatever they might say and however they might differ.⁶Id. at a19. In addition, the District Court noted that Congress had never attempted to impose uniformity on states in the area of domestic relations before DOMA and that to do so impinged upon "matters at the 'core' of the domestic relations law exclusively within the province of the states." Id. at a20.

Fourth, having concluded that there were no other legitimate governmental interests behind DOMA, the District Court rejected the argument that DOMA can be justified as a means of conserving government resources. While excluding any "arbitrarily chosen group of individuals from a government program" would have the effect of conserving the public fisc, the District Court concluded that such a congressional interest in economy, with no other rational basis to support it, does not suffice to explain the line drawn in DOMA. Id. at a20-a21.

Finally, the District Court also rejected BLAG's argument that this Court's prior dismissal for lack of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972), foreclosed petitioner's claim. It observed that Baker presented a challenge to Minnesota's marriage law and thus did not "necessarily decide[ ] the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause." Pet. App. a8. Applying established law on the precedential effect of summary affirmances, District Court therefore held that Ms. Windsor's claim was not foreclosed. Id.⁷

4. On June 8, 2012, BLAG filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. The appeal was docketed on June 11, 2012, as No. 12-2335. In addition, the United States filed a notice of appeal June 14, 2012, which was docketed on June 19, 2012, as No. 12-2435.

On June 13, 2012, Ms. Windsor filed a motion to expedite the appeal due to her age, health, and desire to see the constitutional claim of her spouse's estate resolved during her lifetime. As a result, briefing in petitioner's case will be completed by September 14, 2012, with oral arguments currently scheduled for the week of September 24, 2012.

This case presents an appropriate vehicle for resolving the constitutionality of DOMA. The constitutional question was squarely presented and decided below. In light of the number of decisions and range of analysis presented in recently decided cases, the issue is ready for decision by this Court and no purpose would be served by further delay. Certiorari before judgment is therefore appropriate.

1. This Court has repeatedly held that decisions holding federal statutes unconstitutional warrant review. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Raich, 545 U.S. 1, 9 (2005); United States v. Booker, 543 U.S. 220, 229 (2005); United States v. Morrison, 529 U.S. 598, 605 (2000). Indeed, judging the constitutionality of an Act of Congress is "the gravest and most delicate duty that this Court is called upon to perform." Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)).

2. As this case shows, state marriage laws interact with federal law in myriad ways. See, e.g., supra note 6. DOMA marks the first time that Congress has sought to supplant state law as the source for determining the validity of a marriage. See United States v. Lopez, 514 U.S. 549, 564 (1995) (recognizing that "States historically have been sovereign" on matters of family law, including marriage). While "[l]egislative novelty is necessarily fatal," sometimes "'the most indication of [a] severe constitutional problem . . . the lack of historical precedent' for Congress's action." Nat'l Fed'n of Indep. Bus. v. Sebelius, No. 11-393 (June 28, 2012) (Roberts, C.J. at slip op. 18) (quoting Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010) (internal quotation marks omitted)).⁸

3. It is undisputed that this case presents issues of fundamental national importance, the resolution of which will have wide-ranging effects extending far beyond the parties to this case. Section 3 of DOMA defines the terms "marriage" and "spouse" for purposes of interpreting all federal statutes and regulations. 1 U.S.C. § 7. DOMA thus "affects a thousand or more generic cross-references to marriage in myriad federal laws," most of which "operate to the disadvantage of same-sex married couples." Massachusetts v. United States Dep't of Health & Human Servs., 682 F.3d 1, 6 (1st Cir. 2012). And it has been estimated that there are well over 100,000 same-sex couples married under state law in the United States today. U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn181.html.

Because the terms "marriage" and "spouse" are used in a large number and wide variety of federal laws, many thousands of married same-sex couples are treated differently from married heterosexual couples in a plethora of ways. For example, in addition to affecting the application of the federal estate tax to Ms. Spyer's estate, DOMA affects whether spouses can jointly file their taxes, Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 383 (D. Mass. 2010), aff'd sub nom. Massachusetts v. United States Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), or bankruptcy petitions, In re Balas, 449 B.R. 567, 569 (Bankr. C.D. Cal. 2011). DOMA also governs whether spouses are entitled to a wide variety of benefits, including long-term care insurance benefits, Dragovich v. United States Dep't of Treasury, No. 10-01564 CW, 2012 WL 1909603, at *1 (N.D. Cal. May 24, 2012), access to health care, Golinski, 824 F. Supp. 2d at 974; Gill, 699 F. Supp. 2d at 379-81; and social security benefits, id. at 382-83. This non-exhaustive list provides only a small sample of the broad array of the harmful effects of DOMA.

The impact of DOMA is felt most dramatically today in Ms. Windsor's home state of New York, which enacted civil marriage for same-sex couples on June 24, 2011. 2011 N.Y. Sess. Laws. Ch. 95. New York is by far the largest state in the nation to expressly authorize marriage for same-sex couples under state law. Between July 24, 2011 (when New York's marriage statute became effective), and June 30, 2012, at least 9,763 same-sex couples have received marriage licenses from New York State. In New York City alone, same-sex couples now represent more than nine percent of the total number of marriages performed. As a result of DOMA, however, the large number of New Yorkers already married in New York or previously married in other jurisdictions (including many thousands like Ms. Windsor) are being subjected to a form of second class citizenship where they are fully married for purposes of state, but not federal, law.

2. Even courts that agree that DOMA is unconstitutional have reached that result through different legal frameworks. The First Circuit, in Massachusetts v. United States Department of Health & Human Services, concluded that the "competing formulas" of traditional rational basis analysis and heightened scrutiny were both "inadequate fully to describe governing precedent." 682 F.3d at 8. It therefore decided that "a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review" was warranted. Id. at 11. Accordingly, the First Circuit "require[d] a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage." Id. at 8.

By contrast, the Northern District of California in Golinski v. United States Office of Personnel Management applied heightened scrutiny. 824 F. Supp. 2d at 989. Explaining that cases relying on the now-overturned Bowers v. Hardwick, 478 U.S. 186 (1986), were non-binding and unpersuasive, the court in Golinski wrote that "no federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians," a question that "is still open." 824 F.Supp. 2d at 985. After examining each of the relevant factors identified by this Court, the District Court in Golinski held that heightened scrutiny was the appropriate standard of review for classifications based on sexual orientation. Id. at 985-90.

Finally, in this case, the court below applied standard rational basis review. Pet. App. a12-a13. It reached a conclusion that conflicts squarely other courts applying rational basis review. See Wilson, 354 F. Supp. 2d at 1309; In re Kandu, 315 B.R. at 146-48.

The current situation is untenable. It simply cannot be the case that marriages of same-sex couples that are performed in or recognized by California, New York, and states within the First Circuit will be recognized by the Government and receive federal benefits, while the same federal benefits will be denied to same-sex couples married in Iowa and the District of Columbia.⁹ Moreover, the fact that different federal courts are applying different standards of scrutiny to discrimination on the basis of sexual orientation will have consequences in other situations well beyond DOMA.

Ms. Windsor's case presents an excellent vehicle for resolving the constitutionality of DOMA. That issue was the sole issue before the court below and it was fully briefed and argued on summary judgment. There is no dispute as to the impact of DOMA: BLAG acknowledged that petitioner "has submitted documents that, if accurate, establish the eligibility of Spyer's estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death." See Pet. App. a46 (emphasis added).¹⁰ There are thus no procedural obstacles to resolving the question presented.

Moreover, this case presents one of the most consequential examples of how DOMA operates. Petitioner sought recoupment of a federal estate tax payment of more than $363,000. Payment of the federal estate tax by a surviving spouse is one of the most significant adverse impacts of DOMA since the amount owed, as was true in the case of Ms. Windsor, is typically quite substantial. See Internal Revenue Service, Estate Tax Returns Filed in 2010, by Tax Status and Size of Gross Estate (Oct. 3, 2011), http://www.irs.gov/pub/irs-soi/10es01fy.xls (showing that average federal estate tax paid by estates subject to federal estate tax is nearly $2 million, based on federal estate tax returns filed in 2010). Indeed, since the District Court's decision below, questions have arisen as to whether other surviving spouses in Ms. Windsor's situation should simply pay a very high, unconstitutional estate or file a protective claim. See Eva Rosenberg, Ruling poses tax issues for same-sex couples, Market Watch (July 10, 2012), http://articles.marketwatch.com/2012-07-10/finance/32613467_1.

Both the factual basis and procedural history of Ms. Windsor's ease squarely and cleanly present the sole question at issue: is Section 3 of DOMA constitutional under the Fifth Amendment in discriminating against Ms. Windsor solely because she was married to a woman, instead of a man? Petitioner's case also illustrates the unfairness that can result from the interaction of DOMA and state law: New York's longstanding statute determined New York's state estate tax on the basis of federal treatment of an estate.

Because petitioner's case was decided on the basis of standard rationality review, this Court could affirm the decision below without reaching the question of whether a more stringent standard of review should apply when the Government discriminates on the basis of sexual orientation. While petitioner argued below in the alternative, and continues to believe that heightened scrutiny is appropriate, the decision below demonstrates convincingly that Section 3 of DOMA violates the Fifth Amendment regardless of what standard of review applies. Ms. Windsor's case is therefore an appropriate vehicle for the Court to evaluate the constitutionality of Section 3 of DOMA.

It is well-established that petitioner, as the prevailing party at the District Court, is entitled to seek certiorari before judgment once the case is "in" the Court of Appeals. See United States v. Nixon, 418 U.S. 683, 692 (1974) (holding that the Supreme Court may grant a petition for a writ of certiorari to review any case that is "properly 'in' [a] Court of Appeals," even if a final judgment has not been entered by that court); see also Eugene Gressman et al., Supreme Court Practice 83-89 (9th ed. 2007). And as is the case here in connection with the pending petitions in Gill and Golinski, this Court has previously granted certiorari before judgment in order to hear cases like the present one that raise issues similar or identical to issues raised in cases concurrently presented for this Court's review. See, e.g., United States v. Booker, 543 U.S. 220, 229 (2005); Gratz v. Bollinger, 539 U.S. 244, 259-60 (2003); Taylor v. McElroy, 360 U.S. 709, 710 (1959); Porter v. Dicken, 328 U.S. 252, 254 (1946).

Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court's ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor the executor of Ms. Spyer's estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor's estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer's estate and its sole beneficiary, should be remedied within her lifetime.¹¹

² The administrative complaint in Golinski was presented to Chief Judge Kozinski of the Ninth Circuit in his administrative capacity. Invoking the principle of constitutional avoidance, Chief Judge Kozinski interpreted the Federal Employee Health Benefits Act to permit the Office of Personnel Management ("OPM") to provide Golinski and her same-sex spouse the same benefits available to opposite-sex couples. In re Golinski, 587 F.3d 956, 958 (9th Cir. 2009). The DOJ advised OPM to deny Golinski's spouse benefits. See Joe Davidson, OPM defies orders on same-sex benefits, Wash. Post, Dec. 22, 2009, at A17.

When OPM did not comply with Chief Judge Kozinski's order, and after the District Court ruled it lacked jurisdiction to hear a mandamus action, Golinski filed an amended complaint, challenging the denial of benefits on both statutory and constitutional grounds. Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968, 975 (N.D. Cal. 2012). The district court found Chief Judge Kozinski's statutory analysis "unpersuasive." Id. at 981 n.3. As a result, it went on to address the constitutional question that Chief Judge Kozinski had found unnecessary to address.

³ Every New York state appellate court to have considered the question has agreed that Canadian marriages between same-sex couples were valid under New York law since they were not "contrary" to the "prohibition" of either "natural law" or a New York statute. In re Estate of Ranftle, 81 A.D.3d 566, 566-67 (1st Dep't 2011) (recognizing 2008 Canadian marriage of a same-sex couple in connection with estate of deceased spouse); see also Lewis v. New York State Dep't of Civ. Serv., 60 A.D.3d 216, 222-23 (3rd Dep't 2009) (upholding NYS insurance program's recognition of out-of-state marriages of same-sex couples), aff'd on other grounds, Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. County of Monroe, 50 A.D.3d 189, 193 (4th Dep't 2008) (recognizing 2004 Canadian marriage of a same-sex couple in case involving health care benefits). As the State of New York observed with respect to the validity of petitioner's 2007 Canadian marriage to Thea Spyer: "New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations . . . finding [such recognition] to have deep roots in New York's general principle of marriage recognition." Brief for the State of New York as Amicus Curiae in Support of the Plaintiff at 9, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10-cv-8435).

⁴ New York State's estate tax was determined by reference to an estate's federal estate tax liability. See N.Y. Tax Law § 952(a). In the absence of DOMA, Thea's estate would not have been liable for any federal estate tax and thus no New York State estate tax would have been levied either. See N.Y. Tax Law § 961(3) (providing that a final federal determination "shall also determine the same issue for purposes of' New York State estate tax). But because of DOMA, Thea's estate was subject to a New York State estate tax of $275,528.22. Letter from N.Y. State Dep't of Taxation & Finance to Edith S. Windsor (June 2, 2010) (on file with petitioner).

⁵ Indeed, in the two other petitions for certiorari currently pending before this Court, the Government initially defended the unequal treatment of same-sex couples under DOMA.

⁶ It is clear in the record that there are numerous differences in state marriage laws beyond the recognition vel non of marriages of same-sex couples. See Expert Affidavit of Nancy F. Cott, Ph.D. at ¶¶ 24-64, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10-cv-8435).

⁷ The District Court also rejected BLAG's argument that Ms. Windsor lacked standing to bring this lawsuit because of her Canadian marriage: "[S]ince [New York] State, through its executive agencies and appellate courts, uniformly recognized Windsor's same-sex marriage in the year that she paid the federal estate taxes, the Court finds that she has standing." Pet. App. a7. The Government agreed, stating that although New York law "restricted marriage to opposite-sex couples" in 2007, "New York has long recognized as valid same-sex marriages that were solemnized under the laws of other states or nations, such as Plaintiff Edith Windsor's Canadian marriage to Thea Spyer." Defendant United States' Memorandum of Law in Response to Plaintiffs Motion for Summary Judgment and Intervenor's Motion to Dismiss at 2, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10-cv-8435) (citations omitted).

⁸ The federalism considerations would be different if there were a claim that a state's decision to recognize marriages of same-sex couples violated some independent constitutional norm, such as equal protection. No such claim has been made in this or any of the other DOMA cases, nor could it be.

⁹ California has recognized the validity of the marriages of 18,000 same-sex couples performed prior to the effective date of Proposition 8, see Straus v. Herren, 207 P.3d 48, 122 (Cal. 2009); Proposition 8 itself was held to violate the Fourteenth Amendment in Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012).

¹⁰ The "documents" to which BLAG referred consisted of the estate tax filing that Ms. Spyer's estate made to the Internal Revenue Service, which was produced to BLAG in discovery.

¹¹ As discussed above, supra note 4, Ms. Windsor is suffering a continuing injury due to the operation of DOMA because a New York statute prohibits a redetermination of Ms. Spyer's estate for purposes of New York estate tax liability unless and until a federal court order allowing the marital estate deduction has become final. N.Y. Tax Law § 961. Moreover, petitioner continues to suffer the dignitary harm of the Government's continuing refusal to recognize her marriage as equal to other legally valid marriages. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 (1994) (discrimination "denigrates the dignity" of those it targets and is "practically a brand upon them, affixed by the law" (internal quotation marks omitted)); Nguyen v. I.N.S., 533 U.S. 53, 83 (2001) (recognizing "the potential for injury . . . to personal dignity that inheres or accompanies" sex-based classifications (internal quotation marks omitted)).