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social sciences

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Defense of Marriage Act (DOMA)  
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The decision paid far greater credence than deserved to the argument that Congress was not motivated by hostility to homosexuals when it passed DOMA. It did, however, find that "Several of the reasons given [to justify the rational basis of the legislation] do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."

Acknowledging that "Supreme Court review of DOMA is highly likely," the Court stayed the implementation of its decision pending a likely appeal.

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Pedersen and Windsor Decisions

Meanwhile the Pedersen and Windsor cases advanced through the courts, now with the support of the Justice Department rather than with its opposition as in the earlier cases.

On June 6, 2012, New York District Court Judge Barbara S. Jones found Section 3 unconstitutional in the case of Windsor v. U.S.. In a 26-page opinion, she declared that DOMA is unconstitutional insofar as it forced Edie 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.

Judge Jones found DOMA unconstitutional under the lowest level of judicial scrutiny, "rational basis." She declared that Section 3 violated both equal protection and federalist principles and therefore "does not pass constitutional muster."

She awarded judgment in the amount of $353,053, plus interest and costs allowed by law.

Even though the Department of Justice agreed with the ruling, it filed notice of appeal to the Second Circuit Court of Appeals to facilitate an appeal by BLAG so that the case could subsequently be considered for possible appeal to the United States Supreme Court.

Soon afterwards, on July 31, 2012, in Connecticut, U.S. District Judge Vanessa Bryant also found Section 3 of DOMA unconstitutional in the Pedersen case. Ruling for the plaintiffs, she rejected all the purportedly "rational" bases offered by Congress and the Bipartisan Legal Affairs Group as implausible.

The Windsor case was heard by a three-judge panel of the Second Circuit on September 28, 2012. On October 18, the Court issued its ruling. Applying "heightened" or "intermediate" scrutiny, a two-judge majority found 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 majority (Chief Judge Dennis Jacobs, a very conservative George H. W. Bush appointee; and Judge Christopher F. Droney, a Barack Obama appointee) wrote that homosexuals satisfy the criteria for being a group to which heightened scrutiny should be applied in considering laws that may discriminate. 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."

With DOMA having been declared unconstitutional by Courts of Appeal of the First, Second, and Ninth Circuits, it was widely believed that the Supreme Court of the United States would rule on the law's constitutionality. The real question was which case would it take. On December 7, 2012, the Court announced that it would review Windsor.

DOMA at the Supreme Court

In a 5-4 decision released on June 26, 2013, the last day of its term, the Supreme Court of the United States struck down Section 3 of DOMA in the Windsor case. The Court ruled that Section 3 is unconstitutional under equal protection principles.

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