Thursday, October 18, 2012

2nd Circuit in 2-1 Decision Finds DOMA Unconstitutional

In Windsor v. United States, (2d Cir., Oct. 18, 2012), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that Section 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification:
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.
None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved.  In concluding, Chief Judge Jacobs, writing for the majority said:
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 Straub dissented, arguing first that the issue is controlled by the Supreme Court's summary dismissal of a similar challenge in 1972 in Baker v. Nelson. He concluded further that DOMA should be subject only to rational basis review, and that several of the rationales advanced for the law satisfy that level of scrutiny.

AP reports on the decision. In May, the 1st Circuit also found DOMA unconstitutional. (See prior posting.)

4 comments:

jimbino said...

Now that we're making room for gays couples to feed along with hetero couples at the gummint tit, why not consider this:

A) SINGLES as a group have historically endured persecution and discrimination; B) BEING SINGLE has no relation to aptitude or ability to contribute to society; C) SINGLES are a discernible group with non-obvious distinguishing characteristics; and D) the class remains a politically weakened minority.

Gary47a said...

Jimbino - what is your point? Benefits, protections, immunities etc which are extended to married couples do not make sense prima facie as applied to one person. How can you sponsor a non-partner for immigration? There is no loss of companionship if a non-partner is killed.

Single people with a partner, of either gender, always have the option to marry a person of their choice, in 6 states and DC, and hopefully 3 more after the November election.

There is no discrimination against single people here.

Calvin Brock said...

None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved. In concluding, Chief Judge Jacobs, writing for the majority said New York Tax Preparation

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