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Major victory for gay rights, same-sex marriage

For the first time in history, a federal appeals court on Thursday gave gays and lesbians a broad new form of constitutional protection against discrimination, and extended that protection to their rights when they get married under state law.   The 2-1 decision by the Second Circuit Court in New York City enhances significantly the importance of the ongoing constitutional dispute over gay rights as the Supreme Court seems likely to confront that question anew, in the specific area of same-sex marriage.

The scope of the ruling Thursday was probably more important than the final outcome — a ruling that the 1996 federal Defense of Marriage Act is unconstitutional because it denies legally married same-sex couples the benefits and opportunities under federal law that are fully available to opposite-sex married couples.  In fact, the Circuit Court became the tenth federal court to strike down DOMA’s Section 3, in an unbroken recent string.

While one federal district court judge had ruled that gays and lesbians were entitled constitutionally to greater protection against discrimination, none of the other federal courts that voted to strike down the DOMA provision had done so — until the Second Circuit took that stance Thursday.

The ruling, in fact, came in a case that is already pending in the Supreme Court on attempts by the federal government and others to get the Justices to agree to hear that specific lawsuit, along with other DOMA cases and a California same-sex marriage case.

This case involves a New York woman who is seeking a refund of $363,053 in federal taxes on the estate she inherited when her same-sex spouse died.  She had to pay that tax because, although she had been legally married, the DOMA provision denied her the benefit that opposite-sex widows or widowers would have received.

The earlier appeals to the Supreme Court in that case had come from a federal district judge’s ruling, and were filed while the case was still awaiting an appeal to the Circuit Court.   Presumably, the federal government and others will now seek to put the Circuit Court’s decision before the Justices.

In the recent string of defeats for the DOMA benefits restriction, only one other federal appeals court had ruled on its constitutionality — the First Circuit Court, based in Boston.  But that Court had explicitly refused to go as far as the Second Circuit majority did in the case of the New York City woman, Edith Windsor.

In technical legal terms, what the Second Circuit decision did was to declare that gays and lesbians have become victims of continuing discrimination, and their sexual identities makes them a distinctive class, and, as such, any laws that would discriminate against them must be judged by “heightened scrutiny.”

That standard, sometimes called middle-level scrutiny, tests whether a government policy that is claimed to discriminate against individuals based on their homosexual identity actually serves a significant government policy, and, if not, it will be struck down.

That is one step higher than what is called “rational basis” review. Under that standard, almost any government policy can withstand a constitutional attack, if it has a reasonable justification.   Some courts have sought to toughen that standard, as, indeed, did the First Circuit in the other DOMA decision by a federal appeals court.  But that somewhat elevated standard is not as tough to meet as “heightened scrutiny.”  Thus, laws said to discriminate against homosexuals would have a harder time withstanding that stricter standard.

Under the Second Circuit’s use of that more demanding analysis, discrimination based on sexual identity is now to be judged by the same test that is used when a law is claimed to discriminate against a man or a woman based on their gender.

The Second Circuit’s forty-three-page ruling against DOMA’s Section 3 was written by that court’s Chief Judge, Dennis Jacobs, and joined by a colleague who has been on that court for less than a year — Circuit Judge Christopher F. Droney.

Senior Circuit Judge Chester J. Straub dissented on the key point of the ruling.  He would have upheld DOMA’s benefits restrictions using only a “rational basis” standard.   He also would have ruled that the constitutionality of the DOMA provision was settled under a Supreme Court decision in 1972 in the case of Baker v. Nelson — a summary ruling finding no substantial federal issue in a Minnesota state court decision that it is not unconstitutional for a state to refuse to allow same-sex marriages.

Chief Judge Jacobs, in the main opinion, said the 1972 precedent did not control the outcome in this case, because the issues are different when a federal law is involved.  In addition, the main opinion indicated that the 1972 ruling has been overtaken by a series of later Supreme Court rulings extending some constitutional protection to homosexuals, including for their intimate relationships.

The Supreme Court itself has never specified a constitutional standard for judging laws that treat homosexuals less favorably than others.   It has used a form of rational basis review in such cases, but did not make that a hard-and-fast test.

The test adopted by the Second Circuit Thursday is the one that the Obama Administration has been advocating in the same-sex marriage context, since it changed its views last year and began arguing that the DOMA provision is unconstitutional because it cannot withstand “heightened scrutiny.”

After the Administration changed its position, the defense of DOMA has been pressed by the Republican leaders of the House of Representatives.   The GOP leaders almost certainly will join in asking the Supreme Court to review the Second Circuit’s sweeping new decision.

The Supreme Court now has at least eight pending petitions seeking review of the same-sex marriage issue.  All of them are DOMA cases except the case on the constitutionality of California’s “Proposition 8,” a flat ban on same-sex marriage in that state.  The Ninth Circuit Court has struck down that voter-approved ban.

All of the DOMA cases involve same-sex couples who already were legally married, under existing law — state law in all of the cases except that of Edith Windsor.  She and her partner were married in Canada, before New York State allowed gay marriage.  The Second Circuit Court, however, ruled that New York would have recognized the Canadian marriage as valid even before the state’s own legislative allowed such unions.   Federal law on estate taxes generally depends upon state law to determine who is legally married — that is, until Congress passed the Defense of Marriage Act creating a new federal definition of marriage — a man and woman only.

Although the Supreme Court has not yet scheduled a time for considering the same-sex marriage cases, it appears likely to examine them all at once, perhaps next month.


Recommended Citation: Lyle Denniston, Major victory for gay rights, same-sex marriage, SCOTUSblog (Oct. 18, 2012, 11:11 PM),