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Second Circuit Declares DOMA Unconstitutional in Windsor

A 3-judge panel of the Second Circuit Court of Appeals upholds a district court ruling striking down Section 3 of DOMA as unconstitutional in the Windsor case.  Significantly, the panel’s decision is the first Second Circuit ruling to hold that laws pertaining to gays and lesbians should be considered under more searching heightened scrutiny level of review.

The panel’s majority opinion is written by Chief Judge Dennis Jacobs, a George H. W. Bush appointee and one of the most conservative judges on the circuit, and joined by Judge Christopher Droney, an Obama appointee.  In making its decision to rely on heightened scrutiny (unlike the district court, which opted for the more deferential rational basis scrutiny in light of a lack of established precedent by the circuit court), Chief Judge Jacobs writes that gays and lesbians satisfy all four factors laid out by the Supreme Court in determining the scrutiny decision:

“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.”

The Second Circuit’s ruling is the first appellate court decision to strike down DOMA using intermediate scrutiny; the First Circuit, which struck down DOMA in May, chose to do so using the less stringent rational basis scrutiny (albeit a somewhat more searching version of it sometimes called ‘rational basis with teeth.’)

After making its determination on scrutiny, Chief Judge Jacobs’s ruling holds that “[b]ecause DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA….  Section 3 of DOMA violates equal protection and is therefore unconstitutional.”

In his dissent, Judge Chester Straub, a Clinton appointee, writes that the Supreme Court’s 1972 decision in Baker v. Nelson, in which the Court, “for want of a substantial federal question,” dismissed a challenge brought by a Minnesota gay couple that had been denied a marriage license bars the Second Circuit from hearing any legal challenge pertaining to marriage equality.  He also writes that the majority is incorrect in choosing to adopt a heightened scrutiny standard, since the Supreme Court has not done so itself.  Judge Straub then goes on to write that DOMA is constitutional:

“The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity.  Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President.  It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.”

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