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Topics In the News
DOMA Again Declared Unconstitutional by Appellate Court
Posted by: Claude J. Summers on 10/18/12
Last updated on: 10/19/12
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Edie Windsor.

On October 18, 2012, the United States Court of Appeals for the Second Circuit declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. In its ruling in Windsor v. USA, the Second Circuit applied "heightened" or "intermediate" scrutiny in finding that DOMA violates the Fifth Amendment's equal protection guarantee. One member of the three-judge panel dissented from the ruling, arguing that the law would be constitutional if reviewed under the "rational basis" standard.

The Second Circuit has thus upheld the ruling handed down on June 6, 2012 by United States District Court Judge Barbara Jones of the Southern District of New York. Judge Jones declared that DOMA is unconstitutional insofar as it forced Edith Windsor to pay estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.

Spyer and Windsor had been lovers since 1963. They registered as domestic partners in New York in 1993 as soon as that option became available. In 2007, as Spyer's health began to deteriorate, the couple married in Canada. Spyer died in 2009 and Windsor was obliged to pay $353,000 in federal estate taxes that would have been exempted had they been a married heterosexual couple.

Judge Jones found DOMA unconstitutional under the lowest level of judicial scrutiny, "rational basis." She rejected as unconvincing all the attempts to find a rational basis for the legislation presented by the House Bipartisan Legal Advisory Group, which opposed Windsor's lawsuit.

The Second Circuit majority (Chief Judge Dennis Jacobs, a George H. W. Bush appointee; and Judge Christopher F. Droney, a Barack Obama appointee) write that there are four factors to consider when applying heightened scrutiny, all of which are satisfied by homosexuals: "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."

They argue that the law could potentially pass the lower standard of review, as both the Justice Department (opposing DOMA) and the Bipartisan Legal Advisory Group (defending DOMA on behalf of House Republicans) had argued, but decided that the more appropriate standard is that of "intermediate" review.

They conclude that "DOMA's classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional."

In dissent, Judge Chester J. Straub, a Clinton appointee, argues that the law is constitutional if reviewed under the lenient "rational basis" standard. He also asserts that Baker v. Nelson, a one-sentence Supreme Court summary dismissal of the question of a state marriage law's constitutionality, is binding precedent in the case.

In rejecting that argument, the majority opinion observes that "when Baker was decided in 1971, 'intermediate scrutiny' was not yet in the Court's vernacular."

In an analysis of the significance of the ruling at Towleroad, Ari Ezra Waldman emphasizes that it takes "the groundbreaking step of declaring that discrimination on the basis of sexual orientation warrants heightened scrutiny, not rational basis review, which is likely to force the Supreme Court to mediate the resulting circuit split on the appropriate level of scrutiny."

Ian Millhiser at ThinkProgress writes that the opinion by a very conservative judge "is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an 'exceedingly persuasive' justification. . . . If Jacobs' reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated."

On July 16, 2012, attorneys for Edith Windsor asked the Supreme Court of the United States to hear her suit. The appeal was considered unusual because the case had not then been heard at the appellate level. The request to expedite a Supreme Court ruling was based in part on Ms. Windsor's age, 83, but may also have been part of a wider strategy to persuade the high court to issue a ruling on DOMA as soon as possible.

The petition to the Supreme Court is currently pending, along with other cases in which DOMA has been declared unconstitutional at the District or Appellate levels.

DOMA has now been declared unconstitutional by Courts of Appeal by the First, Second, and Ninth Circuits.

In the video below, from a news conference held after the decision was handed down on October 18, 2012, Ms. Windsor says she is thrilled by the decision. She adds that she found it "so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life."

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