Today’s decision by the Second Circuit to strike down the Defense of Marriage Act is yet another federal court to find the law unconstitutional. But the difference in the opinion today is that the appellate court, in its 2-1 opinion authored by an appointee of President George H.W. Bush, applies a higher level of court scrutiny to laws that single out, or discriminate, against gays and lesbians. That is why many activists, including those in industry groups, are taking special notice of this decision, especially as five different cases challenging DOMA now await word from the Supreme Court on whether they will accept petitions for review. That is in addition to the Proposition 8 case, which is being led by an org of entertainment and political activists via the American Foundation for Equal Rights.
In this case, Edie Windsor is challenging DOMA after her wife died and she faced hefty tax penalties in inheriting her spouse’s estate, something that she would not have faced were her spouse a man.
U.S. District Judge Dennis Jacobs wrote that the “classification of same-sex spouses was not substantially related to an important government interest” and that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.” This is the “protected class” status that puts the burden of proof on the government when passing laws singling out gays and lesbians.
Chad Griffin, president of the American Foundation for Equal Rights, said in a statement, “Official
government discrimination known as DOMA is on its last legs. Court after
court, including conservative jurists, have agreed that this discriminatory law
cannot withstand constitutional scrutiny. We are at a monumental tipping point
as the Supreme Court stands
poised to review laws that have
resulted in treating gays and lesbians as second class citizens.”
Adam Umhoefer, executive director of AFER, said, “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.”
Nevertheless, four states have marriage on the ballot in November, and a recently released poll in Minnesota shows the initiative essentially tied.