United States v. Windsor: Why the 'U.S.' Isn't Actually the Plaintiff At All

The Supreme Court will rule Wednesday on U.S. v. Windsor. The landmark case hinges on whether Section 3 of the Defense of Marriage Act deprives same-sex couples equal protection under the law in defining marriage as between one man and one woman. But who exactly is represented on the side of the “United States” in this Supreme Court battle is not immediately obvious. Despite a complete lack of bi-partisan support, House Republicans are spending up to $3 million of taxpayer money to defend DOMA.

On the Windsor side of the battle is Edith Windsor, a woman who sued the government after having to pay extensive inheritance taxes following the death of her spouse Thea Spyer in 2009. In Windsor’s view, and the view of majority of Americans, this violated the equal protection clause of the Fifth Amendment of the Constitution. If Edith and Thea were a heterosexual couple Edith would’ve been protected from having to pay inheritance taxes on her spouse’s property.

The majority of Americans, 57%, according to a March CNN poll, support same-sex marriage. President Obama announced last year that the Justice Department should stop defending DOMA, calling it unconstitutional. So who is fighting this battle in support of the Defense of Marriage Act anyway? Earlier this year in a news conference, Boehner told the Washington Blade, “If the Justice Department is not going to enforce the law of the land, the Congress will.” More specifically, the House Republicans will. 

House Speaker John Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin McCarthy  hired outside council from Bancroft LLC to continue defending DOMA in the courts. They have done so under the Bi-Partisan Legal Advisory Group (BLAG) though BLAG is a bit of a misnomer. House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) are none too pleased and called on House Republicans to cease piling tax payer money into defending DOMA. In a letter addressed to Speaker Boehner the two wrote:

"From the start, the Republican-led campaign to defend DOMA has been a practice in futility and a waste of Americans’ hard-earned tax dollars. The Republican-appointed, taxpayer-funded legal team has lost in every case. Courts across the nation have stood on the side of justice and equality for all Americans. DOMA is on its way into the dustbin of history."

The two conclude the letter stating they "look forward to a day when DOMA is declared unconstitutional by the highest court in the land."