Major Win for Equality in Second Federal Appeals Court Decision to Strike DOMA

October 18, 2012

by Jeremy Leaming

In helping to advance equality, a second federal appeals court today invalidated on equal protection grounds the so-called Defense of Marriage Act.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit found a provision of the act a violation of the Constitution’s equal protection clause. In May, the U.S. Court of Appeals for the First Circuit also invalidated DOMA as a violation of the equal protection clause. Sec. 3 of DOMA states that the federal government only recognizes marriages between men and women.

In Windsor v. U.S., the Second Circuit panel took a different route to invalidating Sec. 3 of DOMA, saying it could not survive “intermediate scrutiny,” meaning the discriminatory treatment of Sec. 3 of DOMA must surive a stricter test of whether a law violates constitutional rights. The government in this case had the burden of explaining why a grouping of people – lesbians and gay men – for discriminatory treatment did not violate the Constitution’s equal protection clause.

In this matter Edith “Edie” Windsor and her partner Thea Spyer were married in Canada in 2007. The married couple lived in New York and when Spyer died in 2009, Edie was forced to pay taxes on Spyer’s estate, something she would not have had to do if her marriage were treated by the government like straight couples’ marriages.

“The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other,” and same-sex couples like Windsor and her partner  “are the population most visible to the law, and they are foremost in mind when reviewing DOMA’s constitutionality,” the appeals court ruled.

“We therefore conclude,” the majority panel stated, “that sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals.”

Because the panel concluded that gay men and lesbians were a quasi-suspect class it found that the government – in this case a legal advisory group formed by the House of Representatives to defend DOMA – would have a heavier burden of supporting the law against an equal protection challenge. To do so the government would have to show that the classification is “substantially related to an important government interest.”

For the Second Circuit the federal government was not able to make that connection. All of the reasons the government advanced to support DOMA carried the same “defect." In this case the government could not explain why incentives for straight marriages could not also be be granted to same-sex couples. The Second Circuit majority noted that “other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.”

The New York Civil Liberties Union, which helped represent Edie in her challenge to DOMA, lauded the Second Circuit, saying, “Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers. Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”

In May, the U.S. Court of Appeals for the First Circuit also invalidated Sec. 3 of DOMA. The First Circuit concluded, in part, that DOMA advanced disparate treatment of same-sex couples, saying the “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.”