Surprises embedded in Second Circuit ruling; may improve prospects at Supreme Court

There have been enough federal court rulings declaring the Defense of Marriage Act unconstitutional that the Thursday (October 18) ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise, in and of itself. But the panel’s related ruling—that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

In Windsor v. U.S., a three-judge panel vote 2 to 1 that Section 3 of DOMA —which prohibits federal recognition of marriage licenses issued to same-sex couples—is unconstitutional. In doing so, it said that “homosexuals as a group have historically endured persecution and discrimination,” that “homosexuality has no relation to aptitude or ability to contribute to society,” that “homosexuals are a discernible group,” and that gay people, as a class, “remains a politically weakened minority.”

For those reasons, said the court, laws treating people differently because they are gay should be given a heightened level of scrutiny by the courts.

“This is the first federal appellate court ruling that heightened scrutiny—a presumption of unconstitutionality—applies in reviewing sexual orientation discrimination; that’s definitely a big deal,” said Evan Wolfson, head of the national Freedom to Marry group and a long-time legal activist for marriage equality.

“This is huge,” agreed Jon Davidson, legal director for Lambda Legal. “When any form of heightened scrutiny applies, it means that courts no longer presume that the law or government conduct that is challenged is constitutional. Instead, they look with suspicion at the government’s differential treatment of the minority group.

The decision, and the heightened review ruling, apply only to Second Circuit states for now, but Wolfson said it was an especially impressive find led by Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush. Joining Jacobs in the decision was the appeals court’s newest member, Obama appointee Christopher Droney.

Dissenting from the majority was 75-year-old Clinton appointee Chester Straub.

Wolfson noted that the Windsor decision marks the tenth federal ruling that DOMA is unconstitutional.

“No matter how slice it, it’s time for the Supreme Court to swiftly strike down this discriminatory law and get the federal government back to treating married couples, gay or non-gay, as what they are: married,” said Wolfson.

James Esseks, director of the ACLU’s LGBT Project, represented Edith Windsor in the lawsuit. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not allowed to take the routine marital estate tax deduction. Instead, she paid more than $360,000 in taxes on the estate she shared with her spouse.

A legal team hired by the Republican-controlled Bipartisan Legal Advisory Group (BLAG) in the U.S. House argued that, at the time of Spyer’s death (in 2009), the state’s highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution “does not compel recognition of marriages between members of the same sex.”

The Solicitor General appealed the case to the U.S. Supreme Court even before the Second Circuit issued its decision. And constitutional scholar Nan Hunter indicated in her blog that the high court may be inclined to hear Windsor because all nine justices would be able to sit in on the case. Hunter speculated that Justice Elena Kagan would “likely” recuse herself from the Massachusetts cases because she “acknowledged at least limited involvement in discussions of the Gill litigation” while she was Solicitor General.

In its ruling in Windsor, the Second Circuit noted that, “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.

In upholding the district court decision that DOMA violates the equal protection clause of the constitution, the majority opinion rejected an argument by BLAG that the U.S. Supreme Court’s summary dismissal of an appeal of a 1971 case from Minnesota of a gay couple whose request for a marriage license had been rejected.

“When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular,” wrote Jacobs. Citing the Supreme Court’s 1996 ruling in Romer v. Evans, he noted, “The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis.” And, referring to the Supreme Court’s 2003 ruling striking laws prohibiting same-sex sexual relations, he noted, “And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.”

The majority said DOMA could not survive an intermediate level of scrutiny. BLAG’s claim that DOMA preserves some uniformity in the definition of marriage, it said, failed because “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….” And because DOMA affects more than 1,000 federal benefits, it said, BLAG could not persuasively argue that it is substantially related to fiscal matters. The government also failed to prove that DOMA was a means of preserving a traditional understanding of marriage and “responsible childrearing.”

The Supreme Court has not yet indicated when it will announce whether it will hear any of the DOMA cases pending before it. Many court observers have speculated the justices are holding off on their decision until after the November 6 election.

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