A federal appeals court in Manhattan ruled on Thursday that the Defense of Marriage Act (DOMA) is unconstitutional, adding yet another nail to the federal gay marriage ban’s coffin.
The court, Judge Dennis Jacobs writing for the 2-1 majority, rejected DOMA’s mandate that marriage and the term “spouse” should be reserved for a union between a man and a woman.
Even more significantly, the court found that gay rights are deserving of heightened scrutiny, a judicial standard that requires closer reading and therein recognizes gay people as a disfavored class. This is the first time that a federal court has applied such a standard to gay rights cases.
Even though the court has itself a limited jurisdiction, the ruling means that courts could presume that discrimination against gay people is always wrong, making this a significant ruling in its own right. Therefore, the ruling reaches beyond other previous DOMA decisions, such as a Boston appeals court ruling.
The Jacobs opinion, in striking down the law, rejected the “traditional marriage” argument, saying that even if preserving tradition were to be a legitimate interest, DOMA was not an appropriate vehicle.
The opinion firmly stated the law’s “classification of same-sex spouses was not substantially related to an important government interest.” As such, the majority found DOMA to have breached the equal protection clause of the Constitution.
Importantly, the majority also declared that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”
This is a key argument because heightened scrutiny relies on the minority in question’s political powerlessness. It also firmly shuts the door on the dissenting opinion from Justice Chester Straub who contended that gay marriage was a question for the public to decide.
With this ruling the Second Circuit, covering New York, Connecticut and Vermont, has joined the First Circuit, which covers Rhode Island, Massachusetts, Maine, New Hampshire and Puerto Rico, which has also struck down DOMA.
The case was brought by 81-year-old Edith ‘Edie’ Windsor, lead plaintiff in Windsor v. United States. After Windsor’s partner of 44 years died, she was forced to pay more than $360,000 in estate taxes because the federal government, per the 1996 Defense of Marriage Act (DOMA), cannot recognize any same-sex marriage.
“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers,” said James Esseks, Director of the ACLU LGBT Project, in a press release. “Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”
“We are pleased that the federal circuit that represents three states that provide their gay and lesbian citizens with the right to marry affirmed the decision of the district court,” said Roberta Kaplan of Paul, Weiss, counsel to Ms. Windsor.
Windsor has asked the Supreme Court of the United States to take up her case on an expedited basis, given that she has health issues and that her advanced years mean there is a pressing need to resolve this case.
The SCOTUS has yet to move on any of the several DOMA challenges currently awaiting the court’s attention.
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