It’s legal news that keeps countering the notion that it’s legal to discriminate against same-sex couples. Equality is going to win over the long haul.


From the federal Court of Appeals for the Second Circuit, news that the Defense of Marriage Act (DOMA) is about to go on life support. (Scottie Thomaston at HuffPo):

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 DOMA, which limits federal recognition of marriage only to opposite-sex marriages.

The Second Circuit’s ruling applied heightened scrutiny, or “intermediate scrutiny,” as they called it in the opinion…The judges wrote that there are four factors to consider when applying heightened scrutiny, and that 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.

The two judges in the majority concluded 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.”

Over at ThinkProgress, it’s noted that it is a conservative, Chief Judge Dennis Jacobs, who helped strike this down:

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 thesame 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.

Reactions…

Lambda Legal:

“Yet another federal court has found Section 3 of DOMA unconstitutional, and now the first appeals court has applied a heightened standard of review that puts the burden on the government to show an exceedingly persuasive justification for the discrimination. The federal courts keep coming to the same conclusion — treating married same-sex couples differently than married different-sex couples is just plain unconstitutional.

“We are so happy for the plaintiff in this case, who has won the justice she deserves, and we congratulate our colleagues at the American Civil Liberties Union, the New York Civil Liberties Union and law firm Paul, Weiss for achieving this important victory. We are especially gratified that the Second Circuit agrees that government discrimination based on a person’s sexual orientation gets heightened judicial scrutiny — the argument we urged in a friend-of-the-court brief we submitted in the case.

“The so-called Defense of Marriage Act is being challenged in multiple cases, including our case on behalf of Karen Golinski in Golinski v. OPM. It won’t be long before this bad law is gone for good.”

Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), which is the sole sponsor of the federal constitutional challenge to California’s Prop 8:

 “Today’s decision by the United States Court of Appeals for the Second Circuit continues the unceasing momentum toward marriage equality for all Americans and affirms that discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional.  The body of evidence in support of marriage equality is clear and convincing.  This decision, as well previous decisions in other DOMA cases and in our federal constitutional challenge to California’s Proposition 8, signals that the arguments opposing the recognition of marriage for gay and lesbian Americans have no legal basis.  With today’s ruling, we are one step closer to the day when marriage equality is a reality for every American.”

Read the ruling here; here is the dissent (both PDFs).