Thea Spyer and Edie Windsor, back in the day (via NYCLU)
Thea Spyer and Edie Windsor, back in the day (via NYCLU)
The United States Court of Appeals for the Second Circuit has ruled today that Section 3 of the federal Defense of Marriage Act is unconstitutional.

Section 3 is the portion of DOMA which bars the federal government providing federal benefits to same-sex married couples, even when their home states have recognized these marriages, and in deeming it unconstitutional the Second Circuit (NY, CT, VT) now joins the First Circuit (rest of New England, PR) in so holding.

The case regards Edith "Edie" Windsor and Thea Spyer, residents of New York, who married in Toronto, Ontario, in 2007 after 40 years together. Spyer died in 2009, by which point New York state already recognized same-sex marriages performed elsewhere. Because the federal government deemed them "unmarried," Windsor was required to pay more than $363,000 in federal estate taxes on her inheritance. Had their marriage been recognized, she would have paid no taxes.

Today's ruling is notable for two reasons—the who and the how. The who is Chief Judge Dennis Jacobs, writing the opinion, and it's remarkable because Judge Jacobs is a longtime conservative stalwart, not someone predisposed to a more favorable view on these cases.

Then there's the how.  

(Continue reading below the fold.)

If you've followed my analysis on equality issues, you know that in most of these cases, they're decide on a standard of review I'd call "rational basis-plus"—that laws premised upon animus towards a politically disfavored group are presumptively disfavored, but it's not as demanding a level of review as strict or intermediate scrutiny, the tests for laws which discriminate on the basis of race and gender, respectively. Under intermediate (or "heightened") scrutiny, for example, the law need not merely be rationally related to furthering some government interest, but it must further an important government interest in a way that is substantially related to that interest.

And that test, ruled Judge Jacobs, was applicable here:

In this case, all four factors justify heightened scrutiny: 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.
On that last one, he notes:
The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. When the Supreme Court ruled that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories.  The Nineteenth Amendment had been ratified in 1920, and Title VII had already outlawed sex-based employment. The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,” including the presidency, the Supreme Court, and the legislature.

There are parallels between the status of women [in 1973] and homosexuals today: their position “has improved markedly in recent decades,” but they still “face pervasive, although at times more subtle, discrimination . . . in the political arena.” It is difficult to say whether homosexuals are “under-represented” in positions of power and authority without knowing their number relative to the heterosexual population. But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.

Under heightened scrutiny, the statute cannot survive; its justifications are too weak:
Statements in the Congressional Record express an intent to enforce uniform eligibility for federal marital benefits by insuring that same-sex couples receive--or lose--the same federal benefits across all states. However, the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations....

The uniformity rationale is further undermined by inefficiencies that it creates. As a district court in this Circuit found, it was simpler--and more consistent--for the federal government to ask whether a couple was married under the law of the state of domicile, rather than adding “an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition.”

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, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.

Oh. And:
BLAG presents three related reasons why DOMA advances the goals of “responsible childrearing”: DOMA subsidizes procreation because only opposite-sex couples can procreate “naturally”; DOMA subsidizes biological parenting (for more or less the same reason); and DOMA facilitates the optimal parenting arrangement of a mother and a father. We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it.

All three proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way. DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.” FN6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.FN7

FN6 “[T]he argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.” Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012).

FN7 To the extent that BLAG is suggesting that Congress’ laws might actually influence sexual orientation, there is no evidence to support that claim (and it strikes us as farfetched).

In conclusion, he writes:
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.
Judge Charles Straub, a Clinton appointee, dissented, believing that older Supreme Court precedent governed his review of the statute, and that repeal of DOMA was for Congress to decide.

Of note: Because the Obama administration refuses to defend the constitutionality of Section 3, it weighed in on behalf of Windsor here; the Bipartisan Legal Advisory Group (House Republicans) spent your tax dollars on Paul Clement to defend the statute. Also, this ruling only governs Section 3 of DOMA (federal benefits), and not Section 2, which authorizes states to refuse to recognize same-sex couples married elsewhere.

HT to AJPIII, who had it first.

Originally posted to Adam B on Thu Oct 18, 2012 at 12:46 PM PDT.

Also republished by Daily Kos.

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