Second Circuit Court of Appeals rules DOMA unconstitutional in ‘Windsor’ case
October 18, 2012
Today, the United States Court of Appeals for the Second District, out of New York, ruled in Windsor v. United States that the so-called Defense of Marriage Act is unconstitutional. The Court struck down DOMA's discriminatory Section 3, which restricts marriage to different-sex couples and denies federal respect to lawful marriages between same-sex couples, as unconstitutional.
This marks the second time that a federal Court of Appeals has found DOMA unconstitutional, and it is the first appeals court decision to decide that government discrimination against gay and lesbian people should receive a more specific level of judicial review called "heightened scrutiny."
The decision was authored by Second Circuit Chief Judge Dennis Jacobs, a conservative judge appointed by George H.W. Bush. Judge Jacobs is now the sixth Republican-appointed judge to declare DOMA unconstitutional. Here is an excerpt from the decision, which better explains the importance of the application of "heightened scrutiny" in this case:
We conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically "subjected to discrimination,"; B) whether the class has a defining characteristic that "frequently bears [a] relation to ability to perform or contribute to society," C) whether the class exhibits "obvious, immutable, or distinguishing characteristics that define them as a discrete group;" and D) whether the class is "a minority or politically powerless." Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
Freedom to Marry's founder and president Evan Wolfson responded to the news this morning in a release. He said:
Today's ruling is the second by a federal appellate court and the tenth ruling in a row from judges appointed by presidents from Nixon to Reagan to George W. Bush, all agreeing that this disgraceful and discriminatory gay exception to the way the federal government treats married couples must end. The Supreme Court should swiftly agree to hear one or more of these cases and definitively strike down the so-called Defense of Marriage Act, removing this harsh, unfair and unconstitutional burden from families, businesses, the military, and others who want to treat all married couples as what they are: married.
James Esseks, the Director of the American Civil Liberties Union's LGBT Project, also celebrated the court's decision in an ACLU press release today:
Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they're legal strangers. 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.
The ruling today upholds a previous decision from U.S. District Court Judge Barbara Jones, who ruled on June 7 in the Windsor case that DOMA violates the U.S. Constitution.
Windsor's case dates back to November 2010, when the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, working with the American Civil Liberties Union, filed suit on behalf of Edith Windsor. Windsor, a resident of New York state, had legally married Thea Spyer in Canada in 2007 after the two had lived together as a couple in New York for over 40 years. Two years after the marriage, Spyer passed away, and she left her estate to Windsor. Because the federal government did not recognize Windsor's marriage to Spyer, Windsor was forced to pay a $363,000 federal inheritance tax. Had their marriage been accorded the same status under federal law as a different-sex marriage, Windsor would have paid $0 in taxes.
Now, Windsor v. United States faces potential review by the U.S. Supreme Court. The Department of Justice, the ACLU, and Windsor's lawyers have all submitted requests for certiorari to the Supreme Court. Four other DOMA challenges face potential review from the Court as well.