The American Civil Liberties Union has struck out in a different direction from the Obama Administration on a key question of legal strategy in the fight for federal recognition for gay and lesbian couples. In a filing at the Supreme Court today, the ACLU asked the Court to hear the New York case of a woman who was forced to pay massive estate taxes after her wife’s death. The case, in which the ACLU represented the plaintiff, Edith Windsor, was decided on different grounds than the other cases in which federal judges have struck down the Defense of Marriage Act, which limits federal recognition to marriages between one man and one woman. The ACLU’s move marks a major step in the ongoing question of whether, how and when the Supreme Court might take the high-stakes case. The ACLU’s writ of certiorari is the fourth such petition filed in the past three weeks. The ACLU’s move also brings to the foreground a legal question the Administration has sought to avoid: Whether DOMA should be struck down as unconstitutional even if not subjected to the same “heightened scrutiny” that applies to cases involving race and sex.
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