Second Circuit strikes down anti-gay DOMA

The Second Circuit court of appeals just struck down the anti-gay Defense of Marriage Act, saying it violates the Equal Protection clause of the Constitution.

Update from Lambda Legal’s Jon Davidson:

“Section 3 of DOMA (requiring the federal government to treat legally married same-sex couples as single) held unconstitutional by the Second Circuit in the ACLU’s Windsor case today! This is the sixth court to agree with the President and the Department of the Justice that DOMA cannot stand. And the third court (and first federal court of appeal) to conclude that courts should judge with suspicion laws that discriminate based on sexual orientation. Congratulations to James Esseks, Roberta Kaplan, and all who worked so hard on this at the ACLU!”

UPDATE: I’m afraid that, in my excitement, I miscounted. There actually are 8 courts that have concluded that Section 3 of DOMA is unconstitutional. The 1st Circuit in Gill; the 2nd Circuit in Windsor; the federal district courts of Northern California (in Golinski and Dragorvich), Connecticut (Pedersen), Massachusetts (Gill), and New York (Windsor); and the Bankruptcy Court for the Central District of California (Balas, in which 20 bankruptcy judges signed the opinion).

The entire opinion is below.

From the opinion:

Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”  Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews 17 v. Lucas, 427 U.S. 495, 506 (1976)).

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.”…

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….

Congress undertook to justify DOMA as a measure for preserving traditional marriage as an institution. But “[a]ncient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.” Heller, 509 U.S. at 326. A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws. See Lawrence, 539 U.S. at 577-78 (“‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’”)…

Court via Shutterstock

Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman.”…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.”  Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before….

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.

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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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