First an apology. It has been a month since I last posted anything, but I have a full-time job now, and therefore my time for writing is limited.
The odious Defense of Marriage Act may well be on its last legs. This past Thursday, the Second Circuit Court of Appeals (the one that includes New York) declared DOMA unconstitutional in Windsor v. United States. Search far and wide, and you will not find a more compelling story than Edie Windsor’s (seriously, have a look), who was with her partner Thea Spyer for 44 years. They married in Canada in 2007 and that marriage was recognized by their home state, New York (which now has same-sex marriage). When Spyer died, Windsor was burdened with a tremendous federal tax burden on the couple’s estate–something like $350,000. Had Spyer and Windsor been a married heterosexual couple rather than a married lesbian couple, no federal taxes would have been assessed. However, Section 3 of DOMA prevents the federal government from recognizing same-sex marriages performed by any state. Therefore federal tax law considered Windsor and Spyer merely roommates.
The Second Circuit in the strongest possible language, struck down DOMA. This is not completely surprising, even though the judge writing the decision, Dennis Jacobs, was appointed by George Bush 41 and would never be mistaken for a judicial liberal. No federal court that has heard a Section 3 case has found in favor of the government (all the more so since President Obama’s Justice Department refused to defend it on the grounds that DOMA is unconstitutional), and the cases have been coming from all sides. This is due both to the sympathetic plaintiffs and the fact that DOMA should be as unpalatable to judicial conservatives for its abrogation of longstanding principles of federalism as it is to judicial liberals for its treatment of gays and lesbians.
The real surprise of Windsor though was that the Second Circuit in no uncertain terms stated that gays and lesbians are a protected class and that laws that are discriminatory against gays and lesbians merit a heightened judicial review. In other words, the government cannot make up any reason that sounds rational in order to defend the law. It has to be the real reason behind the law, and if either the motive for passage or the outcome after passage is discriminatory in nature, then there has to be a really good reason to explain that discrimination. Since there is almost never a good reason, laws that face heightened scrutiny are almost always struck down. The actual level of review applied by the Second Circuit was the so-called “intermediate scrutiny” which is the standard used for gender discrimination cases. This is the level that the Justice Department also suggests for review.*
No federal court of appeals had ever definitively held that gays and lesbians are a protected class. The Ninth Circuit danced around the issue a few years ago in a DOMA case and again in the Prop 8 case. Earlier this year the First Circuit also struck down DOMA, but declined to apply heightened scrutiny. Even the Prop 8 district court case, presided over by a gay man, evaded the issue of heightened scrutiny. The Second Circuit opinion does not pull any punches though.
So next stop, the Supreme Court. Right now a bunch of DOMA cases are working their way through the federal court system. The LGBT right advocates have won all their cases thus far, but the big test is the Supreme Court. And the Court pretty much has to take it. A federal law was struck down, and a new suspect class was created. Let’s hope the streak can continue. The wind is at our backs right now, although nothing is certain until the Supreme Court has its say.
* It is not however, the most searching level of review. That is called “strict scrutiny” and is primarily reserved for cases involving race. This is really just a matter of semantics though; effectively when a law is faced with a heightened scrutiny review, it will be struck down regardless of whether a court claims to use either strict scrutiny or intermediate scrutiny.