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It's raining DOMA decisions. Yet another judge has found DOMA unconstitutional. This in Windsor v United States, a lawsuit being pursued in the jurisdiction of the 2nd Circuit Court of Appeals. U.S. District Court Magistrate Judge James C. Francis IV Judge Barbara Jones just released his her decision (embedded via Scribed thanks to Kathleen at Prop 8 Trial Tracker).

Here is a direct link to the ScribeD document.

This lawsuit is important because the 2nd Circuit Court of Appeals has never ruled on questions of heightened scrutiny with respect to gays and lesbians. In the Gill case which was just last week resolved in the 1st Circuit Court of Appeals, the decision carefully tiptoed around that question because an earlier decision in the same circuit, Cook, had decreed that gays and lesbians were not entitled to heighted scrutiny on equal protection claims. And in the Ninth Circuit, where other DOMA cases are being heard, an earlier case referred to as High Tech Gays resulted in much the same decision, albeit tempered by a later decision in Witt.

What this means is that on appeal from the District Court, 2nd Circuit judges are free to consider whether heightened scrutiny is appropriate. (It also means that Judge Jones was free to consider this issue as well; whether he did or not we don't know until the actual decision can be read. Updates to follow)

Update: Looks like the judge decided on a "rational basis" foundation.

...because the Court believes that the constitutional question presented may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class.
The lawsuit was brought by the American Civil Liberties Union and the New York Civil Liberties Unions.
The statute had been challenged by Edith "Edie" Windsor, who sued the government for failing to recognize her marriage to her partner Thea Spyer, after Spyer’s death in 2009. Windsor and Spyer were married in Canada in 2007, and were considered married by their home state of New York...

In her lawsuit, Windsor argues that DOMA violates the equal protection guarantee of the U.S. Constitution because it requires the government to treat same-sex couples who are legally married as though they were not, in fact, married


There have been at least five court decisions now ruling DOMA unconstitutional. These are this case, Windsor, in the 2nd Circuit, Golinski and Dragovitch in the Ninth Circuit, the original Gill decision in the 1st Circuit at the District Court level, and the appealed Gill decision just last week by the 1st Circuit Court of Appeals panel.

3:06 PM PT: DAMN!

The ScribeD document is not cut-and-pastable.

3:07 PM PT: "Plaintiff is awarded $353,053..."

3:16 PM PT: Looks like the Judge is relying on the same mechanisms that the First Circuit judges relied on -- "heightened rational scrutiny".

The Supreme Court's equal protection decisions have increasingly distinguished between laws such as economic or tax legislation that are scrutinized under rational basis review, which normally pass constitutional muster, and laws that exhibit... a desire to harm a politically unpopular group, which receive "a more searching form of rational basis review..."

3:22 PM PT: Money quote:

the Court finds that DOMA, Section 3, does not pass constitutional muster.

3:33 PM PT: Direct link to a PDF

3:34 PM PT: MetroWeekly Poliglot article

3:40 PM PT: Jab!

With no other rational basis to support it, Congress' interest in economy does not suffice,

Originally posted to jpmassar on Wed Jun 06, 2012 at 02:56 PM PDT.

Also republished by Milk Men And Women, LGBT Kos Community, Angry Gays, and Kossacks for Marriage Equality.

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