Another Federal Appeals Court Casts A Cold Eye On DOMA

Edith Windsor (right) and her future wife Thea Spyer, in the 1960s

The second circuit Court of Appeals ruled today that section three of the Defense of Marriage Act (“DOMA”), which says that the Federal government will not recognize any same-sex marriage regardless of state law, “violates equal protection” and is therefore unconstitutional.

The case involves Edith Windsor, a widow from New York who had to pay an extra $360,000 in federal taxes because DOMA prevents the Federal government from recognizing her marriage to a woman.

Some notes:

* If the Supreme Court decides to hear this case on appeal, Justice Kagen will not have to recuse herself, since she has never been involved with this case. (Unlike the previous DOMA ruling.)

* The judge who wrote the opinion, Dennis Jacobs, is a Bush I appointee with a very conservative reputation. The dissent is a Clinton appointee (although one with a socially conservative record).

* Importantly, the two-judge majority decided to use “heightened scrutiny” (a standard intended to make it harder for the government to discriminate against unfairly marginalized groups) when deciding this case, rather than the weaker “rational basis review.” If this decision is not overturned by the Supreme Court, that will represent an enormous victory for lgb rights, and make future laws which discriminate against lgb people much harder to defend legally.

* The group defending DOMA, BLAG, was formed by the House of Representatives after the Obama administration declined to defend DOMA. David Lat comments, “It would appear that the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, has now lost at least six cases in a row — and spent about $1.5 million doing so.” Our tax dollars at work.

* Some good quotes from the ruling:

On the question of if homosexuals qualify to be a “protected class”:

BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been recorded.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.”

On the argument that section 3 of DOMA is needed to create uniformity in the law:

To the extent that there has ever been “uniform” or “consistent” rule in federal law concerning marriage, it is that marriage is “a virtually exclusive province of the States.” As the Supreme Court has emphasized, “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce… The Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” DOMA was therefore an unprecedented intrusion “into an area of traditional state regulation.” This is a reason to look upon Section 3 of DOMA with a cold eye…

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…

On BLAG’s argument that DOMA is justified because not paying benefits to gay people saves the government money:

The Supreme Court has held that “the saving of welfare costs cannot justify an otherwise invidious classification.” As the district court observed, “excluding any arbitrarily chosen group of individuals from a government program conserves government resources.”

On the “encouraging responsible childbearing” argument:

Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.

Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

On civil versus religious marriage:

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. 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.

And now, some unfounded speculation about the future:

Of course, none of this really matters until the Supreme Court either takes up the case, or declines it (which would let this ruling stand). My prediction is that the Supreme Court will decide to hear the DOMA case and strike down section three of DOMA.

But I also think they’ll decline the proposition 8 case, and thus sidestep ruling on the larger question of if it’s constitutional for states to deny legal recognition of marriages to same-sex couples. If the Supreme Court does take up that question, I think they’re rule that states do not have to recognize same-sex marriages.

More blogging on this: The Stronger Argument against DOMA at The American Prospect and Does DOMA Discriminate on the Basis of Sexual Orientation, Gender, or Both? at The Volokh Conspiracy.