Karen Ocamb

Federal Appeals Court Rules DOMA is Unconstitutional (Again)

Filed By Karen Ocamb | October 19, 2012 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: ACLU, DOMA, Windsor v. United States

Windsor-v-USA.jpgA Republican judge just wrote the Second Circuit Court of Appeals opinion in Windsor v. USA - ruling that Section 3 of the Defense of Marriage Act is unconstitutional. The ACLU is elated about this victory in their case, noting: "This is the first federal appeals court to decide that a higher standard of review applies to sexual orientation discrimination."

ThinkProgress has a very good quick analysis, noting that it was a very conservative judge - Chief Judge Dennis Jacobs - who authored the opinion striking down the unconstitutional Defense of Marriage Act. ThinkProgress' Ian Millhiser writes:

Even more significantly, Chief Judge Jacobs' opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution:

[W]e 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.

This 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. This is the same very skeptical standard afforded to laws that discriminate against women. 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. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

One unfortunate caveat is necessary: Judge Chester Straub, a Clinton-appointee, dissented. Nevertheless, this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.

(Victory for Edie Windsor - pictured here on the left with her late spouse of 44 years, Thea Spyer - in her long challenge to DOMA)

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