Federal Court Deals Blow to DOMA in Windsor vs. United States

The Second Circuit Court of Appeals (New York) ruled today that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, the section that defines “marriage” under federal law as applying only to marriages between one man and one woman.

In this case, Windsor vs. United States, Edie Windsor filed suit against the federal government after the IRS failed to recognize Windsor’s marriage to longtime partner of 44 years, Thea Spyer. Spyer suffered from multiple sclerosis, which eventually took her life in 2009. Edie and Thea became a couple in 1965 and were engaged in 1967. They married in Canada in 2007 and lived together as a married couple in New York City for 44 years. Their relationship is the subject of a documentary, Edie and Thea: A Very Long Engagement.

Following Thea’s death, the U.S. government taxed Edie’s inheritance to the tune of over $300,000. The Defense of Marriage Act’s definition of “marriage” prevented the IRS from recognizing Edie and Thea’s union as a marriage, thus preventing Edie from being able to claim a spousal deduction for federal estate taxes. Edie filed a lawsuit challenging DOMA in the U.S. District Court for the Southern District of New York in 2010 and prevailed earlier this year. Today, the Second Circuit affirmed that decision in a 2-1 vote.

New Standard Set for Level of Scrutiny Given to Laws Classifying People by Sexual Orientation

Beyond the constitutional ruling itself, one of the most significant findings in the majority opinion is the assertion that laws classifying people by sexual orientation must be analyzed by the court with a heightened level of scrutiny, a level above the rational basis test, which has been the standard (and lowest) level afforded such legislation. The court justified a heightened level of scrutiny by pointing to previous Supreme Court cases which allowed a change in the level of scrutiny when certain factors are present in the case: 1) whether the class has been historically subjected to discrimination; 2) whether the class has a defining characteristic that frequently bears [a] relation to [the ability to] perform or contribute to society; 3) whether the class exhibits obvious, immutable or distinguishing characteristics that define them as a distinct group; and 4) whether the class is a minority or politically powerless. The Second Circuit found that the class of persons defined by their sexual orientation met all of these factors.

In applying an “intermediate” level of scrutiny to DOMA, the court looked to whether or not DOMA furthers an important government interest in a way that is substantially related to that interest and found the government’s arguments unconvincing. The argument that the federal government has an important interest in establishing uniform laws with respect to marriage across the nation were easily dismissed as the court pointed out that the federal government routinely leaves the legislating of marriage to the states and that such uniformity creates further inefficiencies and inconsistencies because it legislates only one aspect of marriage and leaves all of the other myriad aspects to individual state laws. The government’s argument that it is preserving marriage as an institution also failed as the court pointed out that the legality of a marriage is determined by the states and not by the federal government.

Windsor Case Reveals Surprising Allies

The Windsor case has also revealed some surprising allies for same-sex marriage supporters. Chief Judge Dennis Jacobs, a known conservative appointed by President George H.W. Bush, authored the opinion, and was joined by Obama appointee, Judge Christopher Droney. The dissenting opinion was written by Judge Chester Straub, a Clinton appointee, who argued that the Windsor case did not warrant a heightened level of scrutiny for DOMA, that DOMA should be upheld and that the courts should leave the matter to legislators.

The U.S. Supreme Court has been asked to review this case.

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