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Second Circuit Strikes DOMA The case, Windsor v. USA, was filed in November 2010 by the American Civil Liberties Union (ACLU), and other groups, on behalf of Edith Windsor, the surviving partner of a lesbian couple who “married” in Canada in 2007. After her partner passed away in 2009, Windsor brought the lawsuit against DOMA on the grounds that the federal government does not recognize their same-sex “marriage,” which prevented Windsor from claiming “the estate tax marital deduction that is available” to married couples when one spouse dies. In June 2012, the U.S. District Court for the Southern District of New York “granted a summary judgment” in favor of Windsor, when the court ruled that Section 3 of DOMA violated the Equal Protection Clause “because there was no rational basis to support it.” That decision was appealed to the Second Circuit Court of Appeals, which agreed with the lower court’s decision. Writing for the majority of the Second Circuit panel, Chief Judge Jacobs argued that Section 3 of DOMA “requires heightened scrutiny” because homosexuals qualify as a “quasi-suspect class” for the following reasons: 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.” Chief Judge Jacobs then examined the various “justifications” for Section 3 of DOMA, which the majority of the Second Circuit panel determined to fall short of the heightened scrutiny test. “Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony,” he concluded. “Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” Circuit Judge Straub dissented, in part, from the 2 to 1 majority opinion of the Second Circuit in the Winsor v. USA decision. His dissent specifically related to the majority opinion’s argument that “Section 3 of DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.” Judge Straub wrote, “The discrimination in this case does not involve a recognized suspect or quasi-suspect classification. It is squarely about the preservation of the traditional institution of marriage and its procreation of children. DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group.” Judge Straub continued, “DOMA’s classification is to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing that standard, I conclude that DOMA is constitutional. The rational basis standard is most deferential to the determinations of the Congress. Such may be conclusory and are not to be tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be made by Congress, not the Judiciary.” This is the second time this year that a federal court has struck down the federal DOMA. In May 2012, the U.S. Court of Appeals for the First Circuit ruled unanimously in a separate lawsuit, Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, that Section 3 of DOMA violates Equal Protection under the U.S. Constitution. As we previously reported, the U.S. House has been leading the legal defense of DOMA since 2011, when the Department of Justice announced it would no longer defend Section 3 of DOMA in court. In June 2012, a bipartisan legal advisory group of the U.S. House of Representatives filed a petition with the U.S. Supreme Court, asking the justices to review the decision by the First Circuit and decide the fate of DOMA. The U.S. Supreme Court is expected to take up one or both of the cases, along with the ongoing legal challenge to California’s marriage amendment, Proposition 8, in 2013. Related resources: Copyright © 2012. North Carolina Family Policy Council. All rights reserved.
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