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BREAKING: Second Circuit rules Section 3 of DOMA unconstitutional in Windsor v. USA

DOMA trials Windsor

By Scottie Thomaston

The Second Circuit has just issued its opinion in Windsor v. USA, striking down Section 3 of the Defense of Marriage Act as unconstitutional. The Second Circuit applied heightened scrutiny, or “intermediate scrutiny” as they called it in the opinion. One judge concurs in part and dissents in part, writing that the law would be constitutional if reviewed under the more lenient rational basis standard of review. The dissent suggests that Baker v. Nelson is binding precedent in the case.

More:

The Second Circuit has just issued its opinion in Windsor v. USA, striking down Section 3 of the Defense of Marriage Act as unconstitutional.

Edith Windsor is an 83 year old widow ‘who lost her wife in 2009 and was subsequently stuck with more than $363,000 in estate taxes – money she would not have had to pay if she were in a heterosexual marriage. She challenged Section 3 of the Defense of Marriage Act, which limits federal recognition of marriage only to opposite-sex marriages.

The Second Circuit ruled, applying heightened scrutiny, or “intermediate scrutiny” as they called it in the opinion. This form of review is more strict than the lenient ‘rational basis review’ in which statutes can pass constitutional muster as long as they are ‘rationally related’ to a ‘legitimate state interest.’ Heightened scrutiny requires a more rigorous review of statutes for equal protection deficiencies that may exist. Typically , this ‘quasi-suspect class’ status – that a classification of people into groups is somewhat suspect or suspicious without a good reason – requires the kind of review applied to claims of sex discrimination instead of simply deciding whether there is a rational reason for the law. The court must ask if the classification is ‘substantially related’ to an ‘important government interest.’

The judges write that there are four factors to consider when applying heightened scrutiny, and gays and lesbians satisfy all of them, “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 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 to the Second Circuit. Indeed, the majority opinion refuses to disagree with the dissenting judge’s belief that the law passes rational basis scrutiny.

That judge concurs in part and dissents in part, writing that the law would be constitutional if reviewed under the more lenient rational basis standard of review. and 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. The majority disagrees, writing that, “when Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular.”

The two judges in the majority 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.”

The case has already been petitioned to the Supreme Court for review, before the Second Circuit held oral argument. The case has been ready for the Court’s conference to decide whether they will take it up since September 24, but no action has been taken in this case or any other challenges to Section 3 of DOMA.

Here is the opinion, h/t Kathleen:12-2335 #447

The dissent is here:12-2335 #448

145 Comments

  • 1. Straight Ally #3008  |  October 18, 2012 at 9:01 am

    TAP TAP TAP…another nail in the coffin.

  • 2. Robert West  |  October 18, 2012 at 9:02 am

    Thanks for the scribd link. I was trying to find it on PACER but it doesn't seem to be there yet.

  • 3. Mike in Baltimore  |  October 18, 2012 at 10:39 am

    I wish it were an actual link, not a 'live link' to Scribd.

    As it is a live link, as soon as any of the 'live link' comes into view in my monitor, the site goes from very smooth to an extreme of choppiness, sometimes not moving for several seconds. I cannot scroll, 'page down', or use any other method to get by the Scribd. 'live link'.

    And prop8trialtracker.com stated that they would look into the problem and try to solve it. If anything, the problem is worse since that promise was made.

    I also have not seen ANY 'update' marked as to when the 'update' was posted, also promised by prop8trialtracker.com.

  • 4. Kathleen  |  October 18, 2012 at 10:52 am

    Mike, have you tried to just download the document to read?

  • 5. Mike in Baltimore  |  October 19, 2012 at 1:25 am

    How about a link to the Scribd. document, and skip the 'live link' on the Prop 8 Trial Tracker pages?

    What I'm talking about is EVERY time a 'live link' from Scribd. is on the page, I have problems. And if you had actually read what I posted weeks ago (before Thomaston went to DC), and what I posted above, you would see that the problem is not reading the Scribd. link (I can do that with no problem, ESPECIALLY if I go to the Scribd. site), but the 'live link' itself causing the problem on the Prop 8 Trial Tracker pages.

    If a link is provided, then anyone who wants to read the document can click the link and read it. Those who do not want to read the document don't have to put up with any problems caused by the 'live link'.

    Again, in an attempt to make it clear, the inclusion of the 'live link' is the cause of the problem. Downloading the document will NOT get rid of the problem on the Prop 8 Trial Tracker page, since the 'live link' to the Scribd. document will still be there, and still causing the scrolling problem.

  • 6. Kathleen  |  October 19, 2012 at 9:27 am

    Sorry, Mike. I misunderstood what the problem was. I don't know what a "live link" is and thought the problem was something to do with reading the link at Scribd, and was genuinely trying to help you find a way to access the document.

    As to, "And if you had actually read what I posted weeks ago (before Thomaston went to DC)," no I didn't read that. It sounds like you thought I should have, but like many of us who participate at P8TT, I don't read everything posted here.

  • 7. Mike in Baltimore  |  October 21, 2012 at 2:55 am

    Actually, I was NOT addressing the post to you, but to Robert West and the Prop 8 Trial Tracker staff (who I presume reads ALL the posts). After all, my initial post on this problem was directly answered by the Prop 8 Trial Tracker web team.

    And in addition, why did you ASSume that the post was directed towards you? Because the link and 'live link' was attributed to you by the "h/t Kathleen" comment?

    As to a link, one is already provided – the underlined (and usually colored on most systems) line immediately above the 'live link' to the opinion, order, dissent, etc. that is from Scribd.

  • 8. davep  |  October 21, 2012 at 1:44 pm

    Well, Your post WAS a direct reply to a comment made by Kathleen….

  • 9. Mike in Baltimore  |  October 22, 2012 at 3:36 pm

    My ORIGINAL post, from October 19, was to Kathleen?

    No, it was to the post immediately above it, the post written by Robert West, and then Kathleen posted to my post. My SECOND post on this thread was directed at Kathleen in an attempt to clarify some points, and to tell Kathleen to not ASSume.

    As to Kathleen's post, I would expect attorneys (and/or adults) to pay attention to the details, not ASSume things. If some detail is not clear (such as link and 'live link'), then ask questions, don't ASSume.

  • 10. Bob  |  October 18, 2012 at 9:20 am

    good news!!!!!!

  • 11. Gregory in SLC  |  October 18, 2012 at 9:50 am

    About time for some legal news : D ! The waiting game has been tedious!

  • 12. New  |  October 18, 2012 at 9:22 am

    GO Windsor!

  • 13. thatsdrfreak  |  October 18, 2012 at 9:26 am

    Excellent news!

  • 14. jpmassar  |  October 18, 2012 at 9:36 am

    There's no stay! That seems bizarre.

  • 15. Kathleen  |  October 18, 2012 at 10:55 am

    The decision doesn't go into effect until the mandate issues. That's generally 21 days after the decision unless the Court–on its own or by motion of one of the parties–issues a stay. I think we can expect them to stay the mandate here.

  • 16. Ian  |  October 18, 2012 at 11:30 am

    Yeah it wouldn't make sense for DOMA to not be in effect in the 2nd Circuit while the others retain it.

  • 17. Shannon  |  October 18, 2012 at 9:43 am

    Is the intermediate scrutiny and the one losery judge who thinks it would pass rational basis ok? Legally speaking? How overjoyed should we be on a scale of 1-10 in terms of how SCOTUS might approach a decision given this ruling? I know strict would be ideal but what do the legal experts think?

  • 18. Scottie Thomaston  |  October 18, 2012 at 9:52 am

    Not a legal expert by any means, but the Supreme Court generally can do whatever it wants. The lawyers have argued for heightened scrutiny at every step and I'm certain they will at the Supreme Court. But the Court ultimately can do anything.

  • 19. Robert West  |  October 18, 2012 at 10:03 am

    I studied this area of law fairly extensively while I was in law school.

    The "intermediate scrutiny" argument is more or less the same legal argument that the CA Supreme Court used in _the Marriage Cases_.

    Whether sexual orientation gets intermediate scrutiny or rational basis scrutiny is on some level the crux of the *legal* debate between people who think SSM is constitutional and those who think it isn't.

  • 20. New  |  October 18, 2012 at 9:47 am

    [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.]
    Supremes please!?!

  • 21. SHOES THROWER  |  October 19, 2012 at 7:43 am

    Indeed, we need the Supremes.

    With intermediate scrutiny expressed as requiring a substantial relationship to an important government interest, DOMA meets that standard.
    The Supreme Court held in Davis v. Beason, 133 U.S. 333 (1890)

    "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. [Emphasis added]."

    Davis, 133 U.S. at 344, 345, quoting Murphy v. Ramsey, 114 U.S. 15 at 45

    DOMA would fail strict scrutiny. But under Davis, it is substantially related to an important government interest. If , in deciding an equal protection challenge to DOMA, the Supreme Court were to held that anything less than strict scrutiny is required, it must confront its previous holding in Davis.

  • 22. davep  |  October 19, 2012 at 9:42 am

    THAT is your 'argument' for why DOMA should be allowed to deny rights to legally married couples? A completely irrelevant and out-of-context quote from a case in 1885 that includes a phrase about 'Holy Matrimony' and clearly has nothing to do with the issue of civil marriage rights for same sex couples in the 21st century, when several states already allow same sex marriage? I guess this should not surprise me. It's about as 'valid' as all the other bumper-sticker-slogan 'arguments' against civil marriage for same sex couples.

  • 23. SHOES THROWER  |  October 19, 2012 at 5:30 pm

    A completely irrelevant and out-of-context quote from a case in 1885 that includes a phrase about 'Holy Matrimony' and clearly has nothing to do with the issue of civil marriage rights for same sex couples in the 21st century, when several states already allow same sex marriage?

    Only the Supreme Court gets to reconsider the relevancy of that quote.

  • 24. davep  |  October 19, 2012 at 6:41 pm

    You could say that about any issue brought up in any of these comments, including your own. My comment was directed to you, since you were offering that quote as some kind of 'valid reason' for DOMA being allowed to deny rights of legally married couples. The quote clearly has nothing to do with THIS issue and no, the Supreme Court would not be reconsidering the merits of this quote because they would not even be looking to this quote any more than they would be looking to other irrelevant quotes from cases about gold rush land grabs or offshore oil drilling.

  • 25. SHOES THROWER  |  October 21, 2012 at 10:31 am

    The Supreme Court plainly held that seeking to establish "a free, self-governing commonwealth" on the "basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony" is "wholesome and necessary" That language clearly implies a compelling interest.

  • 26. davep  |  October 21, 2012 at 1:48 pm

    That is quite a stretch to conclude that that remark has any bearing on whether federal laws should be allowed to deny equal benefits to legally married same sex couples. It requires some very elastic "logic".

  • 27. Eric  |  October 19, 2012 at 9:49 am

    But as the court noted, refusing to recognize the valid marriages of a minority group, does not further opposite-sex marriage.

    If DOMA banned heterosexual divorce, then your position may have some validity.

  • 28. Gregory in SLC  |  October 18, 2012 at 9:51 am

    CNN:
    http://www.cnn.com/2012/10/18/justice/new-york-ap

    and Huffington….word is getting around:
    http://www.huffingtonpost.com/2012/10/18/doma-def

  • 29. Mark Mead-Brewer  |  October 18, 2012 at 11:32 am

    Some of the nasty comments on the Huffington Post site are just so infuriating.
    Why must some people be so full of hate? …really saddens me.

  • 30. Gregory in SLC  |  October 18, 2012 at 4:36 pm

    Hi Mark (& Hi Robert!) I like your Approve REF 74 Avatar : D ! Yea, the comments are so ignorant. Did you catch this short debate on ref 74? The opposing side does not have any valid arguments…but "our side" did a good job of smacking down the "supposed" Scandinavian studies. The audience is quite disrespectful of the those for Ref 74… We'll just keep marching ahead, heads held high, loving our families, celebrating each victory. Thinking of you and visualizing a Washington win with all my heart!
    http://www.youtube.com/watch?feature=player_embed

  • 31. Appeals Court Strikes DOM&hellip  |  October 18, 2012 at 9:52 am

    […] Another appeals court has found that Section 3 of the Defense of Marriage Act, which says that the federal government only recognizes marriage between a man and a woman, is unconstitutional. […]

  • 32. Tyler  |  October 18, 2012 at 10:05 am

    This decision is perfect. I couldn't write it better myself. And the fact that it was written by a Bush 41-appointed judge is just icing on the cake. The Supreme Court doesn't have to defer to this ruling at all, but this is the first federal appellate court to find that heightened scrutiny applies to LGBT people, which makes it an argument that the Supreme Court has to take seriously. And even better, it did so without saying that there was a rational basis.

    In sum, a truly excellent decision.

  • 33. Steve  |  October 18, 2012 at 11:25 am

    Not just any Bush appointee, but an extremely conservative one too

  • 34. Jay  |  October 18, 2012 at 1:16 pm

    Yes, but I wish it had been a unanimous decision. Did you find the dissent as vacuous as I do? Straub is a Clinton appointee, but he could just as well be Scalia.

  • 35. specificplan  |  October 18, 2012 at 6:28 pm

    Straub is a Reagan appointee, so his dissent isn't really surprising (except that I think Reagan would personally disagree with his opinion). Droney was a Clinton appointee and joined the majority.

  • 36. Larry  |  October 18, 2012 at 6:51 pm

    No, Straub is a Clinton appointee. It says it on his bio on the 2nd circuit's website. And Droney is an Obama appointee.

  • 37. JDF  |  October 18, 2012 at 10:17 am

    Is the decision stayed?
    If not, can BLAG request a stay?
    What are the different timeframes for appeal: en banc ? / scotus?
    Doest the mean that the certiorari petitions are now moot and need to be refiled ?? i.e.: another delay?

    Thanks!

  • 38. specificplan  |  October 18, 2012 at 10:29 am

    Appeals courts usually have a standard "stay" for any decision. I don't know what that is at the second circuit but it is usually a few days at least.

  • 39. Stefan  |  October 18, 2012 at 10:47 am

    Probably not. BLAG has shown that they want these cases sped up and are not dragging their feet.

  • 40. Robert West  |  October 18, 2012 at 11:12 am

    Asking for a stay would not drag their feet. It would prevent the decision from going into effect until the Supreme Court decides whether or not to take the appeal.

    I can't imagine BLAG won't request a stay.

  • 41. Kathleen  |  October 18, 2012 at 10:58 am

    See my answer to jpmassar above.

  • 42. Ian  |  October 18, 2012 at 10:19 am

    Cool, So what about the whole 'Full Faith and Credit Clause' issue? Where are the lawsuits against Section 2 of DOMA?

    So far only the RFMA (or rather RFMB for the time being) addresses this.

  • 43. Stefan  |  October 18, 2012 at 10:36 am

    When Section 3 is struck down it won't be long before lawsuits against Section 2 begin.

  • 44. New  |  October 18, 2012 at 11:30 am

    I was reviewing the text of Section 2 and 3. It seems to me, that if section 3 is gone, section 2 becomes moot. I mean, how will a state be able to discriminate against SSM if the restriction "ONLY between a man and a woman" is gone?

  • 45. Robert West  |  October 18, 2012 at 12:01 pm

    The thing is, the restriction in section 3 only applies to the *federal* recognition.

    The theories under which Section 3 have been struck down by the appeals court have *not* been "the federal government must recognize same sex marriage"; they've been "the federal government must recognize state-valid same sex marriages when it otherwise recognizes marriages from that state".

    This distinction is important, as it means that a ruling based on that theory would not prevent Texas from continuing to refuse to recognize same sex marriages.

  • 46. Jay  |  October 18, 2012 at 1:18 pm

    Yes, but what happens if someone marries in Massachusetts and moves to Texas. I understand that Texas would not recognize the marriage, but would the feds recognize it after DOMA is gone?

  • 47. Steve  |  October 18, 2012 at 3:35 pm

    Depends on the law in question. Some laws recognize any marriage as valid, but there are some that explicitly go by the state of residence (social security or veteran's benefits for example).

  • 48. Robert West  |  October 19, 2012 at 6:38 am

    Probably not, although I think the answer might vary depending on the purpose of recognition.

    The majority opinion handed down yesterday notes:

    > For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death.

    I believe the same would apply for other federal taxes.

    The difference between 'domicile' and 'residence' is a bit complicated, but the simplified version of it is that the domicile is the residence you consider to be your permanent home. A couple married in MA but domiciled in TX would not be recognized by the feds because the state of their domicile didn't recognize their marriage … in any case where the rule is 'what is the rule of the domicile?'

    But, the situation for a couple married in MA, one of whom who joined the military and was then posted to TX would probably be different: for one thing, domicile is not automatically changed by a military posting. For another thing, military spousal status doesn't depend on domicile recognition.

    So *that* couple could – if they did other things such as registering to vote in TX which indicate a desire to change domiciles – could find themselves in the bizarre situation that the DoD recognizes them as spouses but they still aren't recognized as spouses by the IRS.

  • 49. Mike in Baltimore  |  October 21, 2012 at 3:10 am

    My now-deceased partner's parents had that situation of military assignment. They owned a house in Northern Virginia, near the Pentagon, but at various times the father (resigned as a full-bird Colonel in the Army) was stationed in Germany. The parents kept their residence listed as Northern Virginia.

    And when my now-deceased partner was in the Navy, he also listed his residence as Northern Virginia for voting, driver's license, etc., even though he was assigned for a rather lengthy period to a naval base near Athens, Greece (and he and several other sailors had an apartment they leased just off Parliament Square in downtown Athens).

  • 50. Eric  |  October 18, 2012 at 12:02 pm

    Section 2 is a bit trickier, go read the Full Faith and Credit clause, it allows Congress to create exceptions.

  • 51. New  |  October 18, 2012 at 12:15 pm

    Thank you, Robert West and Eric. I'll read the text in full and quit Wikipedia now. Amateur here, but I’m trying ūüôā

  • 52. Kathleen  |  October 18, 2012 at 12:26 pm

    And besides, even if Section 2 goes away, it doesn't automatically mean that other states MUST recognize out of state marriages, i.e, the absence of federally sanctioned non-recognition isn't the same requiring recognition.

    Right now, section 2 gives states a federal law to reference when it refuses to recognize an out-of-state marriage (as the Alabama Appeals Court did in its recent 2nd parent adoption decision). But doing away with that single reason that a state can refuse to recognize the marriage isn't going to mean the state can't look to other laws to justify the refusal.

  • 53. New  |  October 18, 2012 at 12:34 pm

    Thank you, Kathleen. Do you thing that after section 3 is strike down (if), the federal government will deny immigration rights to a same sex bi-national couple, if they got married in any state where gay marriage is legal, but live in a state that doesn’t recognize same-sex marriages?

  • 54. Kathleen  |  October 18, 2012 at 12:57 pm

    I don't really know the answer to that. It would seem to be within the federal government's discretion to recognize the marriage for immigration purposes, but if they didn't, I don't know how a court might resolve the question.

  • 55. New  |  October 18, 2012 at 2:52 pm

    Thank you

  • 56. Mike in Baltimore  |  October 19, 2012 at 1:52 am

    On what basis would the Federal government have to exclude legal marriages, even if other states won't or don't recognize the marriage?

    Are there other Federal laws the Federal government can cite? After all, immigration is a Federal issue, not a state issue (even if the current Airy-Zona government has tried to state it is a state issue).

    I can't think of any law the Federal government could cite, except Section 3 of DOMA. There might be one or more, but if so, they are not very well known and/or used.

    Also, were there any jurisdictions (foreign states, provinces, countries, etc.) that allowed marriage equality when DOMA went into effect in 1994 (remember, DOMA was enacted in direct response to the possible legalization of marriage equality in Hawai'i)? I know Canada and certain states of Mexico started allowing marriage equality after DOMA. Denmark and a few other jurisdictions had civil unions before DOMA, but a civil union is NOT a marriage.

  • 57. Robert West  |  October 19, 2012 at 6:40 am

    > On what basis would the Federal government have to exclude legal marriages, even if other states won't or don't recognize the marriage?

    It depends on whether the immigration statute defines marriage by recognition-by-the-domicile. I think it would probably also depend on whether recognition is as of time of marriage, as of time of application for immigration, or continuous during the immigration process. (My guess is that the statute uses the last of these, to prevent immigration of people who have gotten divorced while their application is being processed, but i really haven't the faintest idea, it's just a guess).

  • 58. Mike in Baltimore  |  October 22, 2012 at 4:04 pm

    According to a paper written by Scott Titshaw titled 'The meaning of marriage: Immigration rules and their implications for same-sex spouses in a world without DOMA' (date of publication unknown, but it could be from 2010) (http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1048&context=wmjowl):

    "With the exception of a provision excluding unconsummated
    proxy marriages, the U.S. Immigration and Nationality Act (INA)
    does not define the words 'marriage' and 'spouse.' ”

    Which goes back to my original question: "Are there other Federal laws the Federal government can cite [if all or part of DOMA is declared unConstitutional]?"

  • 59. Robert West  |  October 19, 2012 at 6:38 am

    I don't know enough about how the immigration *statute* is worded to be able to answer that question.

  • 60. specificplan  |  October 18, 2012 at 1:50 pm

    This is true, but Congress would have to exclude marriage entirely from the full faith and credit clause. They can't just exclude gay marriage from that clause, which is what DOMA does.

  • 61. Eric  |  October 18, 2012 at 2:38 pm

    Good point.

  • 62. Steve  |  October 18, 2012 at 11:26 am

    Section 2 is redundant. Even without it, under current precedent states are free to ignore any laws that violate their expressly stated "public policy". It's absurd, but that's how it has been for decades

  • 63. Ann_S  |  October 18, 2012 at 11:49 am

    Steve, I agree. Section 2 is redundant. "New", Section 3 only addresses what the federal government is required to recognize, it will not affect recognition of an out-of-state marriage by a state.

  • 64. New  |  October 18, 2012 at 12:01 pm

    Thank you Ann_S! I hope future lawsuits mentioned above will take care of that on state level then.
    And I hope that the end of section 3 will be enough to take care of bi-national couples seeking immigration rights in all states.

  • 65. Appeals Court Strikes DOM&hellip  |  October 18, 2012 at 10:20 am

    […] Court Strikes DOMA Section 3 Posted at 1:32 on October 18, 2012 by Another appeals court has found that Section 3 of the Defense of Marriage Act, which says that the federal government […]

  • 66. Str8Grandmother  |  October 18, 2012 at 10:23 am

    They decided in remarkable speed didn't they? Oral Hearing Sept 27 and decision October 18th. Shows that they know how important this is and that they got right down to work since this is pending cert at SCOTUS.

    I'll have to go back and look at the 9th circuit how long it was between oral arguments in Golinski and the decision.

  • 67. Kathleen  |  October 18, 2012 at 10:57 am

    There have been no oral argument nor decision from the 9th Circuit in Golinski.

  • 68. Str8Grandmother  |  October 18, 2012 at 11:46 am

    Oh that's right they rescheduled the oral hearings. I should look up the Massachusetts cases.

  • 69. Kathleen  |  October 18, 2012 at 12:27 pm

    The argument has not been rescheduled either – just put on hold until SCOTUS resolves the petition for cert before judgment.

  • 70. Ed Cortes  |  October 18, 2012 at 10:27 am

    Unless Bohner gets more money (Taxpayer money, that is) BLAG has spent almost all of their funding…

  • 71. devon  |  October 20, 2012 at 4:25 am

    A Romney election will surely solve BLAG money woes, as the republican will be putting all the resources of DOJ into defending DOMA once again.
    Progress on DOMA will stop at the supreme court until Romney selects a new Solicitor General and new briefs are filed adhering to the hateful republican views on equality.
    Sad but true IMHO.

  • 72. Dissent  |  October 18, 2012 at 10:28 am

    I don't like the dissent and that they all agreed DOMA passes rational basis review. A dissent only Scalia could love.

  • 73. Larry  |  October 18, 2012 at 10:39 am

    The majority opinion didn't say that DOMA passes rational basis. The majority said that because gays and lesbians are entitled to heightened scrutiny, it wasn't necessary to even consider if DOMA passes rational basis, let alone which rational basis (normal lenient rational basis or rational basis with bite) would be appropriate.

    That said, the dissent was quite disappointing. Besides just saying that Baker vs Nelson is precedent, it also says that gays and lesbians aren't a suspect class because the Supreme Court said courts should be hesitant to create a new suspect class (which is totally different that the Supreme Court never allowing a new suspect class to be created).

  • 74. davep  |  October 18, 2012 at 10:58 am

    There's a LOT of strange stuff in the dissent. It's as if it had been copied & pasted from any of the various anti-gay blogs. Of course it IS a dissent, but sheesh! It's full of the same long-debunked arguments that have never withstood any rational scrutiny. These same arguments were even debunked again in this very trial! All that stuff about how DOMA serves the purpose of 'protecting marriage', and stuff about 'responsible procreation'.

    Like this one on page 18: "DOMA advances the governmental interest in connecting marriage to biological procreation by excluding certain couples who cannot procreate"

    A) That's not a valid government interest, and

    B) Excluding those 'certain couples' doesn't achieve that anyway!

    Doesn't it seem weird that a Supreme Court judge would fill a dissent with statements that clearly do not even make sense, let alone constitute a valid argument? It's as if the judge hasn't even heard anything that has been said during any of these trials.

  • 75. Straight Dave  |  October 18, 2012 at 11:26 am

    That's exactly why I love this dissent!!!!!!!!!!!
    Is is so off the wall that it deserves no respect at all. It will be very easy for SCOTUS to disregard it as "if that's the best you've got, were not the least bit interested". You have to presume that a written dissent by a circuit judge is the best shot there is. I'll gladly let him ride that horse.

  • 76. davep  |  October 18, 2012 at 11:46 am

    Good point!

  • 77. Jay  |  October 18, 2012 at 1:21 pm

    I hope you're right, but lots of things that Scalia and Thomas write also don't make any sense.

  • 78. Robert West  |  October 18, 2012 at 11:59 am

    It's not clear to me that there is no government interest in encouraging straight people to only procreate when married.

    Where I differ from the dissent is that I don't think excluding gay people is a rational way to go about doing that.

  • 79. davep  |  October 18, 2012 at 12:30 pm

    The flaw in that is the phrase 'biological procreation'. The state may have an interest in encouraging couples who are raising children or who might have children to do so within the legal framework of a civil marriage. But it does not matter how these children enter the family, biologically or otherwise.

    Whether the child is the biological offspring of both parents is not the determining factor in whether the government ought to encourage the couple to be legally married. It is the fact that all couples – gay or straight – raise children, or may raise children. Where the children came from is irrelevant to this question.

    So while there may indeed be a legitimate government interest in encouraging couples who procreate to do so within a civil marriage, children enter families in other ways too and "connecting marriage to biological procreation" is by itself not a valid states interest.

  • 80. Leo  |  October 18, 2012 at 3:09 pm

    I think there's a more basic flaw, even without considering the other ways children can enter families. There are two distinct claimed interests here:

    (A) Encouraging procreation, when it happens, to happen within a marriage;
    (B) Fostering a public perception that marriage is connected ("inextricably," in BLAG's language) to procreation.

    B does not logically follow from A. It requires an independent justification. The government is interested in people who drive being sober, but not in "inextricably connecting" sobriety to driving. The government is interested in its electorate being educated, but not in "inextricably connecting" education to voting. The government is interested in people who lose their job having savings to fall back on, but not in "inextricably connecting" savings to unemployment.

    Our opponents assert that A depends on B, but they don't prove it anywhere, nor demonstrate why it would be rational for a legislator to believe that.

  • 81. davep  |  October 18, 2012 at 3:38 pm

    Well said!

  • 82. Mike in Baltimore  |  October 19, 2012 at 2:05 am

    An aunt and uncle of my (half-)sister had two 'biological' children, then adopted two children (brothers) who were older than their own children.

    A 'blended' family in a different manner than the traditional 'blended' family caused by previous divorce of the spouses, but still a 'blended' family.

    And it wasn't long until the adopted children were calling my (half-)sister's relatives "Mom" and "Dad", with a very evident true respect for them as their parents.

  • 83. Steve  |  October 20, 2012 at 10:41 am

    That's also why saying "marriage is about uniting families with their biological children" is such bullshit. It's about creating legal ties between people, but they don't have to be biological

  • 84. SHOES THROWER  |  October 18, 2012 at 9:35 pm

    I do note the dissent cited pre-Baker Supreme Court opinions describing marriage as between one man and one woman, none of which were cited by the majority opinion, even if only to explain when they were overruled.

    Marriage today, according to the federal government, means what it has always meant—a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing. Murphy [v. Ramsey] set forth this understanding,
    Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to doubt that definition should not still stand

    Dis. op. at 33

  • 85. davep  |  October 20, 2012 at 4:28 pm

    …. and all four elements of that statement: "….a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing" …. are complete BS and have been easily debunked. Civil marriage is none of those things, nor has it ever been.

  • 86. davep  |  October 20, 2012 at 6:14 pm

    To save you the trouble, copied from another thread:

    “[m]arriage today, according to the federal government, means what it has always meant—a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing.”

    1. Civil marriage is not, nor has it ever been, a "Holy union". It is jaw dropping that a Supreme Court judge would write such a statement in a dissent. It is an untrue statement and it reveals another agenda by referring to religious beliefs in a matter of civil law.

    2. Civil marriage is not, nor has it ever been "essential to the survival of the species". He is confusing civil marriage with procreation. Two completely separate things.

    3. "Between a man and a woman". He is resorting to a cheap tautology, essentially saying 'civil laws regarding marriage cannot be changed to include same sex couples because the law says it does not currently include same sex couples'. Not only does the statement fail to pass any logical scrutiny, it is clearly not true because several states (and a dozen other countries) have already made such changes to their laws.

    4. "the principal purpose of which is to encourage responsible child rearing". Wrong on multiple counts. The principle purpose of civil marriage is to establish legal kinship of an unrelated couple, to make them legally 'a family'. This affords the couple important legal rights and protections and also gives them certain responsibilities, all of which are intended to benefit both the couple and the state. And all of this is true even for couples who cannot or choose not to have children.

    Now, the state may also have an interest in all couples who have children or who may raise children to do so within a legal civil marriage, but that would include ALL couples who may raise children, not just those couples who have & raise their own biological children. The state would have just as much interest in both straight couples and gay couples who adopt to do so within a legal civil marriage as it would an opposite sex couple raising their own biological children.

  • 87. jack bowsky  |  October 18, 2012 at 11:03 am

    reade and only got part of the meaning and arguments. and plain written conclusion?

  • 88. davep  |  October 18, 2012 at 12:13 pm

    I'll give it a try – anyone feel free to correct or clarify this:

    First, it shows that Edith Windsor was indeed legally married to her spouse., and that she suffered harm because of DOMA (being forced to pay $363,000 that she would not have had to pay if she had been in an opposite sex civil marriage instead of a same sex civil marriage).

    Then it shows why a previous case in Minnesota which ruled against same sex couples (Baker v. Nelson) is not binding precedent in this case – because the issues are different. The question in Baker was whether the State of Minnesota could deny same sex couples access to civil marriage, while the question here is whether the federal government can deny legal recognition of the existing and completely legal marriages of same sex couples in states that already allow same sex marriage.

    Then it explains the difference between testing a law for constitutionality based only on 'rational basis', and testing a law based on 'heightened scrutiny', and shows why laws that single out gay people deserve the stricter 'heightened scrutiny' (that's a very good thing for us).

    Then it examines BLAG's four proposed 'arguments' for DOMA and shows why NONE of them pass this type of 'heightened scrutiny' (and in fact, other courts have found that these arguments don't even pass the more lenient 'rational basis' review).

    And thus they conclude that section 3 of DOMA is unconstitutional, since it singles out a group of citizens and harms them, and the arguments that try to present reasons for DOMA being allowed to do this simply don't hold up to this type of scrutiny.

  • 89. devon  |  October 18, 2012 at 12:06 pm

    This is great news and so quickly rendered.
    However, a Romney election next month would effectively stop action on DOMA at the supreme court. President Romney would likely direct DOJ to switch positions again and defend DOMA, causing delays while the government lawyers work on new pro DOMA briefs.

  • 90. Stefan  |  October 18, 2012 at 12:58 pm

    So then vote for Obama!!! Despite his drop in support after the first debate, I still think he's likely to get re-elected.

  • 91. specificplan  |  October 18, 2012 at 2:00 pm

    First, I think it's likely that all the cases would be briefed at the Supreme Court before any change in the administration. Second, I don't think that a change in the administration is a valid reason for a delay at the Supreme Court. If the DOJ wants to change their argument, it's up to them to do it at oral arguments. Third, I think that if there is a change in the "argument" from the DOJ, it really just makes our argument that much stronger. If the arguments for/against the rights of gay people change with the political winds, then gay people are a suspect class.

  • 92. Seth from Maryland  |  October 18, 2012 at 1:48 pm

    New Washington Poll:The state’s most reliable opinion poll, published on Thursday, finds Referendum 74 with a 21-point lead, but delivers an “adjusted model” predicting a much, much closer statewide vote on same-sex marriage.
    Cosponsored with KCTS-TV In its latest survey, 48 percent of likely voters say they are “certain” to vote for Referendum 74, with 4 percent answering “Yes-could change” and 2.1 percent undecided but leaning “Yes.” Just 31 percent of registered voters, and 34 percent of likely voters, told the poll they were certain to vote No.
    The result? A seemingly “safe” 56.3-35.6 advantage among registered voters, and a 54.1-38.4 lead with likely voters.
    In 2009, however, when Washington voted on civil unions for same-sex couples, the Washington Poll found the Yes side 17 points ahead. The measure won on election day by just 6.5 points.

  • 93. Seth from Maryland  |  October 18, 2012 at 1:49 pm

    With popular support on the upswing, some voters are “uncomfortable” and “less honest” telling a poll-taker they will vote No. “We went out and looked for patterns of inconsistency in the answers,” Barreto said.

    The result is an “adjusted vote estimate”: 52.9 percent in favor of Referendum 74, 46.6 percent opposed.
    http://blog.seattlepi.com/seattlepolitics/2012/10

  • 94. Eric  |  October 18, 2012 at 2:41 pm

    Never underestimate the ability of "Christians" to lie to pollsters.

  • 95. specificplan  |  October 18, 2012 at 6:32 pm

    This is a terribly sad comment on the reality of the situation.

  • 96. Stefan  |  October 18, 2012 at 2:43 pm

    I think this is great news, since the same poll for Referendum 71 3 years ago showed nearly identical results among registered voters as this one does now for full marriage (17 points vs 20.7 points now). We still need to work hard until election day though.

  • 97. Mike in Baltimore  |  October 19, 2012 at 2:23 am

    New poll by the Washington Post on Maryland's Prop 6:

    For: 52%
    Against: 43%

    The Post article is two pages, and includes information on an unrelated Proposition on the Maryland ballot (Prop 4 – Maryland's version of the Dream Act for in-state tuition). The full article can be found at: http://www.washingtonpost.com/local/dc-politics/m

  • 98. Seth from Maryland  |  October 18, 2012 at 2:12 pm

    [youtube ZExF-jMIKQw http://www.youtube.com/watch?v=ZExF-jMIKQw youtube]

    WOW!!!! David Blankenhorn appears in a new Minnesota AD against the Amendment

  • 99. davep  |  October 18, 2012 at 2:51 pm

    Wow indeed! Very cool. Can someone who has access to comments section at the NOM site please send them a nice little post about this? We wouldn't want them to miss it : )

  • 100. Gregory in SLC  |  October 18, 2012 at 4:39 pm

    tee hee : )

  • 101. MichGuy  |  October 18, 2012 at 2:43 pm

    Another link to the ruling in PDF format http://www.ca2.uscourts.gov/decisions/isysquery/1

  • 102. Taylor  |  October 18, 2012 at 3:05 pm

    Is there a scorecard graphic that has every case on gay marriage (DOMA or otherwise) and its outcome (for or against gay marriage)? I think it'd be a very simple, powerful image.

  • 103. Jim  |  October 18, 2012 at 3:37 pm

    I'm with Taylor, a score card would be nice, however, I would ad to it where these cases in the court system and if they are likely to be seen by SCOTUS this year.

    I ask this, because I believe Prop 8 is tied up to the DOMA cases and no decision for CERT or not will be made until all the DOMA cases have hit SCOTUS.

    On another note: Having today's decision rule that Gays and Lesbians are indeed a suspect class may push Prop 8 into CERT, since the ruling on Prop 8 also claimed suspect class.

  • 104. Stefan  |  October 19, 2012 at 1:15 am

    I don't think the 9th ruling addressed the issue of class. I believe Walker did in the initial ruling, but the 9th didn't say anything about the subject.

  • 105. Mike in Baltimore  |  October 19, 2012 at 2:15 am

    I think the reason the Prop 8 case has not yet had cert accepted or rejected is that SCOTUS is trying to determine if the current plaintiffs do or do not have standing, and if they don't, what to do with the case.

  • 106. Robert West  |  October 19, 2012 at 6:46 am

    the current plaintiffs being the intervenors for the official proponents?

    i find it highly unlikely that the part of the 9th circuit opinion regarding the standing of the intervenors will be overturned. the general rule for this is that they have standing if they would have standing to enforce the initiative under state law; the state supreme court said they would (when the 9th circuit asked them).

  • 107. Mike in Baltimore  |  October 21, 2012 at 3:27 am

    The standing issue was the 9th Circuit's decision on whether to hear the case or not. SCOTUS also has a definition of standing, and just because a lower court decides one party or another does or does not have standing does not mean SCOTUS will automatically agree.

    And remember, the Cal. state Supreme Court decided that the current parties would have standing in state court, and the 9th relied on that basis to accept the case. SCOTUS might decide that they do have standing in state court, but not in Federal court. After all, this is a Federal court case against a Federal law, a court case that would not be in the state court system.

  • 108. SHOES THROWER  |  October 21, 2012 at 1:06 pm

    The gravamen of the Ninth Circuit's holding on standing was that litigants may appeal a federal court decision striking down a state law or policy if they have authority under state law to do so. It then cited the California Supreme Court decision holding that the Prop 8 appellants had such authority, and standing flowed from that.

  • 109. SHOES THROWER  |  October 21, 2012 at 1:18 pm

    To understand the standing issues, we must first examine the general principle that a litigant has standing to defend the interests of another party if authorized by law to do so. It was an issue in this very case. The case was filed on behalf of the estate of Thea Spyer, with Edith Windsor asserting herself as the executor. Second Circuit unanimously found that Windsor's marriage to Spyer was recognized under state law, and it followed that she had standing to sue on behalf of her widow's estate.

    Similarly, a state may designate, by law, whether a litigant may sue to represent its interests- including the defense of its laws.

    In Karcher v. May, 484 U.S. 72 (1987), the Supreme Court considered the standing of New Jersey legislative leaders to defend a state law in a district court and appellate court. In holding that the officials had standing in lower court, the Supreme Court pointed out that "[t]he New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties respondent on behalf of the legislature in defense of a legislative enactment" Karcher, 484 U.S. at 82, citing In re Forsythe, 91 N.J. 141, 144, 450 A.2d 499, 500 (1982)

    In Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), the Ninth circuit held that Arizona initiative sponsors had standing to defend their initiatives in federal court. It did so on the basis that Arizona initiative sponsors are similarly situated to state legislators, and that Arizona law gives sponsors "official rights and duties distinct from those of the voters at large" Yniguez, 939 F.2d at 733

    Yniguez, however, has its flaws. It did not cite a specific provision in Arizona's statutes or constitution that authorizes initiative proponents to defend their enactments. Nor did it cite an Arizona Supreme Court decision that authoritatively established such authority. By sharp contrast, the Supreme Court relied on Forsythe to establish that the Assembly speaker and the Senate President had authority to defend New Jersey statutes during their terms in office. This was the reason for the Supreme Court's grave doubts in Arizonans for Official English v. Arizona.

    While Yniguez was never overruled by the Ninth Circuit en banc or the Supreme Court, it is not a perfect fit to California. Yniguez did not hold that initiative sponsors per se had standing, only that the particular appellants had standing due to Arizona law (however flawed their reasoning was.) The Supreme Court relied on its New Jersey counterpart to determine if the Karcher petitioners had standing to defend the law in question before the district court and appellate court. Therefore, the Ninth Circuit decided to certify the question to the California Supreme Court.

    Together, Yniguez and Perry only establish that states may grant initiative sponsors authority to defend initiatives in federal court; they did not establish that initiative sponsors had standing to defend their initiatives regardless of state law.

  • 110. Robert West  |  October 19, 2012 at 6:45 am

    Not really true. The prop 8 district court decision said that the ban on gay marriage didn't even pass rational basis review. The prop 8 appeals court decision shunted the entire discussion into one based on _romer_, which doesn't require suspect classifications; it's enough that the state retracted a right based on nothing other than personal animus against a discrete minority.

  • 111. Sagesse  |  October 18, 2012 at 4:18 pm

    Three weeks for a decision. If SCOTUS chooses to take Windsor, this means they will consider the second circuit decision, not the district court decision. The appellate court wanted to be heard on this.

  • 112. Mike in Baltimore  |  October 19, 2012 at 5:06 pm

    Yes and no, Sagesse.

    SCOTUS has the authority to bring in any part of the previous case, going back to the District Court arguments and decision, or even facts and information that were not introduced at the District Court or Appeals Court levels. Appeals Court rulings are pretty much limited to affirming, narrowing or overthrowing the District Court ruling, based on the decision. Normally, no new evidence is introduced (except when the District Court ignored an existing court ruling and/or law).

    In most cases, the Appeals Court decision controls, as usually the Appeals Court decision pretty much mimics the District Court ruling.

    That doesn't mean SCOTUS will adhere only to the Appeals Court ruling, though. In effect, when a case hits SCOTUS, it is a brand new case.

    (That's my understanding of how SCOTUS operates, based not on being an attorney, but observing the court for decades and reading about the court system. If I'm incorrect on any of the above, someone please correct.)

  • 113. Kathleen  |  October 19, 2012 at 7:31 pm

    While it's true that SCOTUS will review the case anew, I agree that the 2nd Circuit wanted to be heard on this. It was asked to put the case on hold, pending resolution of the cert before judgment petition and declined to do so. It also made sure its decision was issued before SCOTUS made a decision on the pending petition.

  • 114. Leo  |  October 18, 2012 at 11:11 pm

    Questions for lawyers:

    On the one hand, there's a fully briefed petition for cert before judgement. On the other hand, there now is a judgement! Does that moot the petition? Or is it automatically converted to a normal cert petition? If the latter, will it require new briefs? BLAG argued against cert before judgement, but certainly won't argue against cert. However, can they argue against immediate cert on the ground that they still have the option to seek en banc in the 2nd Circuit (and 45 days to do so)? If new briefing is required, how likely is it that SCOTUS will continue to sit on Prop 8 and the other DOMA cases until then?

    Finally, there has been speculation that one of the reasons for the petitions for cert before judgement may have been to make sure Justice Kagan can participate. Does today's decision guarantee that on its own?

  • 115. Stefan  |  October 19, 2012 at 1:46 am

    BLAG has shown that they are interested in the cases reaching the Supreme Court as soon as possible, so it's unlikely they'd try and delay. They supported having Golanski get an en banc and skip the 3 judge panel of the 9th circuit. This shouldn't delay things much at all really.

    As far as Kagan, she was only planning on recusing herself in Gill, one of the two Mass. cases now consolidated into one (and even then I doubt she would've). This makes it even more of a given that she won't recuse herself.

  • 116. Robert West  |  October 19, 2012 at 6:47 am

    it also makes it possible for the court to not take Gill but address the issue by taking this case instead, which I think would make everyone happier.

  • 117. Leo  |  October 19, 2012 at 7:03 am

    BLAG has only shown that to an extent. They did not oppose initial hearing en banc in Gill and Golinski, but they did oppose cert before judgement in all cases; they asked (unsuccessfully) the district judge in Pedersen not to issue a ruling until the appeal in Windsor is decided; and they asked (also unsuccessfully) the appeals court in Windsor to postpone the oral argument until after the Supreme Court rules on cert before judgement.

  • 118. Sagesse  |  October 19, 2012 at 3:00 am

    I have a question about the (partial) dissent… if Straub thinks heightened scrutiny does not apply, and that DOMA survives rational basis, what part of the decision DOES he supposedly agree with?

    I haven't finished reading the decision yet, but the reports I've read don't have much to say about the dissent, and I'm confused.

  • 119. Jay  |  October 19, 2012 at 6:04 am

    He agrees that Windsor has standing (i.e., that New York would have considered Windsor and Spyer married even though they were married in Canada before New York adopted ssm). He doesn't agree with affirming the lower court's decision or that DOMA is unconstitutional.

  • 120. Kathleen  |  October 19, 2012 at 9:35 am

    He also agrees that the DOJ's appeal shouldn't be dismissed. You might recall that BLAG and the DOJ each filed an appeal and BLAG moved to dismiss the DOJ appeal.

  • 121. Bill S.  |  October 19, 2012 at 3:03 am

    Why did the court go with intermediate scrutiny instead of strict scrutiny?

  • 122. Jay  |  October 19, 2012 at 6:06 am

    Good question. They seem to use the terms "intermediate scrutiny" and "heightened scrutiny" interchangeably. I think "intermediate" scrutiny is a term SCOTUS uses in connection with discrimination against women.

  • 123. Steve  |  October 19, 2012 at 7:42 am

    Intermediate scrutiny is a form of heightened scrutiny. Strict scrutiny is more demanding because it also demands that a law is narrowly tailored to its purpose and uses the least restrictive means to do so.

  • 124. Leo  |  October 19, 2012 at 6:26 am

    We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”

  • 125. Bill S.  |  October 19, 2012 at 1:37 pm

    What exactly is the "sufficient" degree of mistreatment necessary? As if guaranteed total ostracization from society from the years 1920 (using BLAG's conservative starting point for anti-gay treatment) to the mid 1990s were not sufficient enough.

  • 126. davep  |  October 19, 2012 at 5:22 pm

    I was wondering the same thing. You would think that things like violent anti-gay hate crimes, and being confined to mental institutions and given shock treatments and other horrible 'procedures' would count for something…

  • 127. Eric  |  October 19, 2012 at 9:55 am

    Because judges are conservative.

  • 128. Prop 8 Trial Tracker &raq&hellip  |  October 19, 2012 at 10:41 am

    […] the big news was the 2-1 decision by the Second Circuit Court of Appeals in Windsor v. USA striking down Section 3 of the Defense of Marriage Act as unconstitutional, while at the same time […]

  • 129. Mike Ho.  |  October 19, 2012 at 12:32 pm

    <img src="http://www.newautoquote.us/ikeas/loo.jpg"/&gt; Thanks for the prompt update on this, it's about time.<img src="http://www.newautoquote.us/xboz/jj.jpg"/&gt;

  • 130. A. M.  |  October 19, 2012 at 8:59 pm

    I find it more compelling to look at one fact here: The only purpose for this case was because someone felt the government and its' laws were discriminating against a "minority class" that includes Windsor, the plaintiff. If the purpose is to determine whether or not a law is constitutional then I say go for it. That is where the law should prevail. Regardless of bias or opinion towards the "class", the law should protect all citizens of this country and not just a select few. If the laws are unconstitutional in part, then they should be deemed invalid in whole, the same as any legally binding contract. If the government knows they wrote something without concern for legal status, then it should be rectified through the proper channels. If Windsor strongly believes in her case, then I say fight it out and let's see the outcome. Constitutional or not? I'm interested to see where this case is headed.

  • 131. Prop 8 Trial Tracker &raq&hellip  |  October 23, 2012 at 12:07 pm

    […] last week’s Second Circuit Court of Appeals decision in Windsor v. USA, Edith Windsor’s legal challenge to the constitutionality of Section 3 of the Defense of […]

  • 132. Prop 8 Trial Tracker &raq&hellip  |  November 2, 2012 at 8:02 am

    […] high court to take up. ¬†BLAG’s new filing comes in the wake of the Second Circuit’s decision¬†in October striking down DOMA as unconstitutional under the heightened scrutiny standard of review […]

  • 133. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:39 pm

    […] week, Section 3 of the Defense of Marriage Act was struck down under equal protection principles in Windsor v. USA. Notably, all of the states under the Second Circuit’s jurisdiction have legalized same-sex […]

  • 134. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:40 pm

    […] it reached them through petitions for certiorari before judgment at the appeals court, and there is now a judgment at the appeals court (along with promises by the Justice Department and the Bipartisan Legal Advisory Group (BLAG) to […]

  • 135. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:41 pm

    […] members), wrote the majority opinion in a case called Windsor v. USA¬†ruling that DOMA is¬†unconstitutional on precisely the heightened scrutiny grounds outlined by the Obama administration. ¬†That opinion […]

  • 136. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 9:01 pm

    […] been ruled unconstitutional by several district courts and two circuit courts, most recently the Second Circuit, based in New York. ¬†Four different DOMA cases have been petitioned to the Supreme Court, which is […]

  • 137. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 1:40 pm

    […] that the Justice Department had noted in a reply brief that it would soon take further action after the Second Circuit held Section 3 of the Defense of Marriage Act unconstitutional in the case. Their initial petition for certiorari was filed before judgment at the court of […]

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