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Second Circuit Rules Section 3 of DOMA Unconstitutional in Windsor v. USA

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The Second Circuit has just issued its opinion in Windsor v. USA, striking down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.

Edith Windsor is an 83-year-old widow who lost her wife in 2009 and was subsequently stuck with more than $363,000 in estate taxes -- money she would not have had to pay if she were in a heterosexual marriage. She challenged Section 3 of DOMA, which limits federal recognition of marriage only to opposite-sex marriages.

The Second Circuit's ruling applied heightened scrutiny, or "intermediate scrutiny," as they called it in the opinion. This form of review is stricter than the lenient "rational basis review," in which statutes can pass constitutional muster as long as they are "rationally related" to a "legitimate state interest." Heightened scrutiny requires a more rigorous review of statutes for equal protection deficiencies that may exist. Typically, this "quasi-suspect class" status (based on the idea that a classification of people into groups is somewhat suspect or suspicious without a good reason) requires the kind of review applied to claims of sex discrimination instead of simply deciding whether there is a rational reason for the law. The court must ask if the classification is "substantially related" to an "important government interest."

The judges wrote that there are four factors to consider when applying heightened scrutiny, and that gays and lesbians satisfy all of them:

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.

They argued that the law could potentially pass the lower standard of review, as both the Justice Department (opposing DOMA) and the Bipartisan Legal Advisory Group (defending DOMA on behalf of House Republicans) had argued to the Second Circuit. Indeed, the majority opinion refused to disagree with the dissenting judge's belief that the law passes rational basis scrutiny.

That judge concurred in part and dissented in part, writing that the law would be constitutional if reviewed under the more lenient rational basis standard of review, and that Baker v. Nelson, a one-sentence Supreme Court summary dismissal of the question of a state marriage law's constitutionality, is binding precedent in the case. The majority disagreed, writing that "when Baker was decided in 1971, 'intermediate scrutiny' was not yet in the Court's vernacular."

The two judges in the majority concluded that "DOMA's classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional."

Before the Second Circuit held oral arguments, the Supreme Court had already been petitioned to review the case. The case has been ready for the Court's conference to decide whether they will take it up since Sept. 24, but no action has been taken on this case or on any other challenge to Section 3 of DOMA.

Scottie Thomaston is a contributor at Courage Campaign Institute's Prop8TrialTracker.com, where this piece originally appeared.