Q&A: Paul Weiss Partner on the Future of DOMA

The Justice Department’s announced decision on Wednesday that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act in two cases challenging the act sent shockwaves throughout the legal and political worlds. Section 3 of DOMA, which was signed into law in 1996, defines marriage to be "a legal union between one man and one woman as husband and wife."

We reached out to Roberta Kaplan, a litigation partner at Paul, Weiss, Rifkind, Wharton & Garrison, to talk about the impact and consequences of the Obama administration’s decision. Kaplan represents plaintiff Edith Windsor in Windsor v. United States, one of two cases in recent months to challenge the constitutionality of Section 3 of DOMA. Windsor, an 81-year-old widow, brought her suit in Manhattan federal district court in November after she was forced to pay $350,000 in federal estate taxes because of the government’s refusal to recognize her marriage to Thea Spyer. (The second case, Pedersen v. The Office of Personnel Management, was filed in Connecticut federal district court in November.)

The Justice Department has defended the constitutionality of DOMA ever since President Obama took office–and despite repeated calls by the president for a full repeal of the act. Were you surprised that the administration suddenly reversed course and decided it would no longer defend Section 3 of DOMA?

Yes and no. On the one hand, it certainly was a change in course for the Department of Justice and the [Obama] administration. On the other hand, as we explained when we filed this case, we believed that our client Edie Windsor and her late spouse Thea Spyer were denied equal protection of the laws because of DOMA and that it would not be possible for the government to justify the unequal treatment that occurred. The president and the Department of Justice have now recognized that.