DOMA ruling has a twist: Higher scrutiny for gay laws

by Anthony Glassman

New York City--A federal appeals court panel ruled on October 18 that the Defense of Marriage Act is unconstitutional, backing up arguments by President Barack Obama and the Justice Department.

The court also ruled that gays and lesbians fall under the same category for constitutional protections as other groups, like race, sex and national origin.

It�s the first time that a federal appellate court has ruled that �heightened scrutiny� has been applied to same-sex couples.

While the court�s decision does not legalize same-sex marriage, it ruled that it is unconstitutional for the federal government to refuse to recognize same-sex marriages performed in jurisdictions where they are legal, like New York and Massachusetts.

A three-judge panel of the Second Circuit Court of Appeals ruled in favor of Edith Windsor, who was required to pay over $360,000 in tax on the estate she inherited from her wife Thea Spyer. If the federal government had recognized their marriage, the estate would not have been taxed.

It is the second federal appellate ruling striking DOMA, after one earlier this year in the First Circuit in Massachusetts. When the Obama administration and the Justice Department refused to defend the law, House speaker John Boehner and the GOP-controlled House hired a private law firm to defend DOMA in court, at a cost of $1.5 million to taxpayers.

Boehner�s Bipartisan Legal Advisory Group appealed the Massachusetts decision to the Supreme Court, which will decide whether to take it up on November 20.

If the Supreme Court takes up the almost inevitable appeal of the New York case and upholds the heightened scrutiny requirement, that would put laws discriminating against LGBT people at the same level as laws discriminating against women and racial minorities. It would be more difficult to prove a compelling state interest to those laws.

The case was decided on a 2-1 ruling by the panel. The case could be appealed to the full Second Circuit, but given the First Circuit case already pending, it is likely they would be amalgamated and the New York case would skip the en banc appeal.

One of the two judges who ruled against DOMA was an appointee of the elder President George H.W. Bush, while the other was an Obama pick.

Chief Judge Dennis Jacobs, the Bush appointee, wrote, �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.�

�BLAG argues that, unlike protected classes, homosexuals have not �suffered discrimination for longer than history has been recorded.� But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a �history of discrimination,� � Jacobs notes.

The dissenting voice was that of a Clinton appointee, who pointed to a 1972 case in which a couple in Minnesota were refused a marriage license because they were of the same sex. The Supreme Court ruled that their case did not present a federal question.

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