See the Judgment – ” we conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional ”
By Melanie Nathan October 18, 2012
The issue of same-sex marriage as a constitutional right for all Americans has been decided by the the Federal Appeals Court, for the Second Circuit in the case of Edith Windsor. House Speaker John Boehner, wasting money on behalf the U.S. Congress, has just lost his appeal. This is a great victory for LGBTI America and an imperative victory for equality. The Court concluded that that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional . See the Judgment below.
Windsor v. United States is a lawsuit decided in the United States District Court for the Southern District of New York. Both the District Court and the Appeals Court found unconstitutional section 3 of the Defense of Marriage Act (DOMA), which defines the terms “marriage” as “a legal union between one man and one woman as husband and wife” and “spouse” as “a person of the opposite sex who is a husband or a wife”.
The law firm Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the American Civil Liberties Union (ACLU), filed the case in the U.S. District Court for the Southern District of New York on behalf of Windsor as executor of Spyer’s estate.
On February 23, 2011, Attorney General Eric Holder released a memo regarding two lawsuits challenging DOMA section 3, Windsor and Pedersen v. Office of Personnel Management. It explained that the Obama administration had determined that classifications based on sexual orientation should be subject to heightened scrutiny, and therefore it could no longer defend the constitutionality of DOMA’s section 3. The administration intends to continue enforcing the law until it is either repealed by Congress or finally declared unconstitutional in court. On April 18, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit “for the limited purpose of defending the constitutionality of Section III” of DOMA. Department of Defense and Department of Justice attorneys did not oppose the motion.
Windsor’s attorneys filed a motion for summary judgment on June 24. New York Attorney General Eric Schneiderman filed a brief supporting Windsor’s claim on July 26, arguing that DOMA Section 3 cannot survive the scrutiny used for classifications based on sex and constitutes “an intrusion on the power of the state to define marriage.”On August 1, BLAG filed its brief seeking summary judgment on the grounds that marriage is not a fundamental right and that classification based on sexual orientation is not subject to heightened scrutiny.
On June 6, 2012, Judge Barbara Jones ruled that, based on rational basis review, section 3 of DOMA is unconstitutional as applied in the case as it violated plaintiff’s rights under the Equal Protection Clause of the Fourteenth Amendment and ordered Windsor receive the tax refund due her.The plaintiff said afterward, “It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers.”
“Think Progress notes:– Chief Judge Dennis Jacobs is a very conservative judge. He joined a court decision effectively declaring corporations immune to international human rights law — even when they “trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy.” And he once gave a speech to the conservative Federalist Society decrying the “anti-social effects” of attorneys providing free legal services to the less fortunate.And yet, this severely conservative judge is also the author of an opinion striking down the unconstitutional Defense of Marriage Act. Even more significantly, Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution.”
“[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. 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.”
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012
(Argued: September 27, 2012 Decided: October 18, 2012) Docket No. 12-2335-cv(L); 12-2435(Con)
EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, Plaintiff-Appellee, - v.- UNITED STATES OF AMERICA, Defendant-Appellant,
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges.
Intervenor Bipartisan Legal Advisory Group of the United States House of Representatives appeals
from an order of the United States District Court for the Southern District of New York granting
summary judgment in favor of the surviving spouse of a same-sex couple who was denied the benefit of the
spousal deduction under federal tax law. The United States, the defendant, is a nominal appellant.
For the following reasons, we conclude that Section 3 of the Defense of Marriage Act violates equal protection
and is therefore unconstitutional . Judge STRAUB dissents in part and concurs in part in a separate opinion.
STUART F. DELERY, Acting Assistant Attorney General, United States Department of Justice, Washington, DC (Michael Jay Singer, August E. Flentje, on the brief), for Defendant- Appellant.