NEW YORK – The victories keep stacking up in court: Ten in a row. The Second Circuit Court of Appeals today became the latest court to rule that the discriminatory Defense of Marriage Act (DOMA) is unconstitutional, this time in the case involving Edith “Edie” Windsor.
The Second Circuit determined that DOMA violates the equal-protection guarantee provided by the U.S. Constitution, and sided with Windsor, the 83-year-old widow who was forced to pay estate taxes after the 2009 death of her wife.
Even more important legally, the appeals court ruled for the first time in the DOMA cases that government discrimination against gays and lesbians gets "heightened scrutiny," meaning that a tougher level of judicial review will apply.
"I look forward to the day that the government recognizes the marriages of all couples and I hope I'm alive to see it," Winsor (pictured at left) said later at a news conference in Manhattan.
On July 16, Windsor petitioned the U.S. Supreme Court to hear her DOMA case, hoping to bypass the Second Circuit, but the appeals court reached a decision before the nation’s highest court decided whether to take on the case.
The Supreme Court has several other DOMA cases as well as California’s Proposition 8 to consider for review, but has yet to address that matter since the fall session opened Oct. 1. Many legal observers believe that the high court will not conference on the gay issues until after the Nov. 6 presidential election.
Meanwhile, today in New York, the DOMA defense continues to crumble in court. DOMA defines marriage as between a man and a woman and declares that states do not have to recognize same-sex marriages. Since the law was enacted during the Clinton era, marriage equality has spread to progressive states and the federal law clashes with state law over such issues as taxes and inheritance.
The Obama Administration and the Justice Department have determined that DOMA is unconstitutional and are refusing to defend the law in court. But House Republicans led by Speaker John Boehner are spending $1.5 million in taxpayer money to defend DOMA in court, and they have yet to win a single case.
Today's ruling was 2-1. Interestingly, the majority opinion was authored by the most conservative member of the appeals court panel, Judge Dennis Jacobs, who was appointed by President George H.W. Bush. He was joined by Obama appointee, Judge Christopher Droney. The dissent was by penned by Judge Chester Straub, appointed by President Bill Clinton.
Gay and lesbian couples can marry in Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, New York and Vermont. Maine, Maryland and Washington voters will decide on Nov. 6 whether to uphold marriage equality laws approved by their state legislatures. Minnesota voters are deciding on whether to approve a state constitutional amendment to ban marriage equality.
California, Delaware, Hawaii, Illinois, New Jersey and Rhode Island currently permit civil unions. However, California's Proposition 8 has been declared unconstitutional by a lower court and upheld by the appeals court, but the case is pending with the Supreme Court.
Reaction to today's news
Evan Wolfson, president and founder of Freedom to Marry:
"Today's ruling is the second by a federal appellate court and the 10th ruling in a row from judges appointed by presidents from Nixon to Reagan to George W. Bush, all agreeing that this disgraceful and discriminatory gay exception to the way the federal government treats married couples must end. The Supreme Court should swiftly agree to hear one or more of these cases and definitively strike down the so-called Defense of Marriage Act, removing this harsh, unfair and unconstitutional burden from families, businesses, the military, and others who want to treat all married couples as what they are: married."
Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sole sponsor of the federal constitutional challenge to California’s Proposition 8:
“Today’s decision by the United States Court of Appeals for the Second Circuit continues the unceasing momentum toward marriage equality for all Americans and affirms that discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional. The body of evidence in support of marriage equality is clear and convincing. This decision, as well previous decisions in other DOMA cases and in our federal constitutional challenge to California’s Proposition 8, signals that the arguments opposing the recognition of marriage for gay and lesbian Americans have no legal basis. With today’s ruling, we are one step closer to the day when marriage equality is a reality for every American.”
Rick Jacobs, founder and chair of the Courage Campaign:
"Today's ruling is another step towards ending an unjust, unconstitutional and un-American piece of legislation. Next stop, Supreme Court. Politicians and judges have no business telling anyone who they can love and who they can marry. Today's ruling is yet another step in this country's movement towards equality. We applaud the ruling and will continue to work every day until efforts to legally discriminate, like DOMA and Prop 8, have been fully defeated."
Michael Keegan, president of People For the American Way:
“Every federal court that has reviewed DOMA’s section 3 has found that it violates our constitutional principles. This should be no surprise. DOMA hurts gay and lesbian married couples by denying them some of the most basic protections of marriage, and it does so for no reason but prejudice against LGBT families. Our Constitution guarantees all Americans equal protection under the law, and DOMA clearly violates that principle.
“House Speaker John Boehner has wasted nearly a million and a half taxpayer dollars on defending this indefensible law. I am confident that the Supreme Court would not let DOMA stand, but I hope that they never have to review it. Most Americans don’t want to hurt their gay and lesbian neighbors, and we’ve seen over and over again that DOMA does real harm to real people. Congress must recognize the harm that DOMA has done and repeal it before it hurts more legally married Americans.”
Susan Sommer, director of constitutional litigation for Lambda Legal:
"Yet another federal court has found Section 3 of DOMA unconstitutional, and now the first appeals court has applied a heightened standard of review that puts the burden on the government to show an exceedingly persuasive justification for the discrimination. The federal courts keep coming to the same conclusion -- treating married same-sex couples differently than married different-sex couples is just plain unconstitutional.
"We are so happy for the plaintiff in this case, who has won the justice she deserves, and we congratulate our colleagues at the American Civil Liberties Union, the New York Civil Liberties Union and law firm Paul, Weiss for achieving this important victory. We are especially gratified that the Second Circuit agrees that government discrimination based on a person's sexual orientation gets heightened judicial scrutiny -- the argument we urged in a friend-of-the-court brief we submitted in the case.
"The so-called Defense of Marriage Act is being challenged in multiple cases, including our case on behalf of Karen Golinski in Golinski v. OPM. It won't be long before this bad law is gone for good."