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.
Categories: Marriage
The Circuit Judge in the Connecticut DOMA case also found heightened scrutiny. But this was an Appeals Panel so that is even better
I feel very strongly that the Supreme Court will find Heightened Judicial Scrutiny applies to laws that effect Sexual Minorities. Even if they do NOT take the Prop 8 case (I hope they do but the majority of sexual minorities and their straight supporters say they hope they don’t take it) even if they do not take the Prop 8 case just getting heightened scrutiny in the DOMA cases is going to strike down all those Sate Constitutional Amendments in other Federal Equal Protection Court Cases.
I think the Supremes will take Prop 8 and they will make a broad ruling. I think Prop 8 is going to be the Brown vs Board of Education for Sexual Minorities. Sure they will have a chance to rule narrowly but I don’t think that they will, I think there will be a Brown vs Board of Education type majority. No more Plessy vs Ferguson this Court, the majority of them know about discrimination.
I wonder if Elana Kagen isn’t a lesbian. She could be another Sally Ride. It’s her business if she is, but maybe maybe if she is a lesbian she might push her fellow Justices. Now that is a reach I know, but Sally Ride surprised a lot of people too.
David Blankenhorn:
This is a tad off topic. However, I wanted to publicly acknowledge the video you made regarding the Minnesota marriage amendment. Jeremy has it up here:
http://bit.ly/RKNKjV
Mods: If this is too OT or inappropriate, just whack it. No explanation required.
This is a very important ruling, especially since the question of the level of scrutiny is a “new impression” in the Second Circuit. One reason the Supreme Court is likely to hear this case (which is already before them on an appeal from the District Court) is because SCOTUS must mediate the various levels of scrutiny than have been used in the multiple times that DOMA has been declared unconstitutional at both the District and Appellate levels.
IMost observers agree with Barry in thinking that SCOTUS will deny review to the Prop 8 case, thinking that the Court doesn’t want to become involved in the overarching question of a constitutional right for same-sex couples to marry. But it is telling that the Prop 8 Case seems to have been lumped in with the DOMA cases. (We expected a decision on Prop 8 several weeks ago since it had been docketed for the first conference of the new term.)
The Prop 8 case offers the opportunity for a sweeping ruling that would be a great legacy for Justice Kennedy, along with Justice Ginsburg, has been the most articulate supporter of equal rights on the Court.
My gut feeling is that the Supreme Court is not quite ready to overturn 30 state constitutional amendments that specifically address the issue of same-sex marriage.
And by “the Supreme Court,” I mean justices Kennedy and Roberts. Neither wants to be part of a majority opinion that will be overturned in a few short years. But they don’t want to be too activist, if they can help it.
As such, the Prop 8 case presents some problems for them. If they can uphold this decision and punt on Prop 8, I think they will welcome it.
I have never understood how DOMA could be constitutional, simply on the grounds that the states have the right to regulate marriage.
In terms of Prop 8, I think Peter Hoh is right. The Supreme Court will either overturn the lower court (saying that Prop 8 can’t pass) or will support it in a very narrow way.
Peter Hoh:
there is nothing before the court that would have that effect. The Prop 8 ruling by both the lower court and the 9th Circuit is extremely narrow and applies only to California. My guess is that the Court is not going to here the case.
The consolidated DOMA cases – at this point – would only result in federal recognition based on state recognition of same sex marriage. DOMA insofar as precluding full faith and credit is not yet an issue.
Straightgrandmother:
Probably not. The Ninth Circuit was extremely careful to craft a ruling that is limited to California. The reason that I don’t think the Court will take the case is because DOMA is the more important of the two. Justice Ginsburg has already said publicly that the Court is unlikely to hear both cases.
Strictly speaking, nothing would prevent the Court from taking the prop 8 case and using it as a vehicle for a broad ruling in favor of, or against, gay marriage. The Court is completely free to ignore the narrow decision and make a broader decision instead.
I don’t think the Court will do that. But it’s not correct to imply that they couldn’t.
David Cary Hart, you are right that the Prop 8 case has been narrowly ruled on by the Ninth Circuit. However, if SCOTUS accepts the case for review, they are not bound to focus on only the narrow ruling. They will also have before them the expansive ruling by Judge Walker, and the litigation efforts of Olson and Boies who will be arguing for a constitutional right to same-sex marriage. SCOTUS can do whatever they want to do. The question is what do they want to do.