October 18, 2012
By Scottie Thomaston
The Second Circuit has just issued its opinion in Windsor v. USA, striking down Section 3 of the Defense of Marriage Act as unconstitutional. The Second Circuit applied heightened scrutiny, or “intermediate scrutiny” as they called it in the opinion. One judge concurs in part and dissents in part, writing that the law would be constitutional if reviewed under the more lenient rational basis standard of review. The dissent suggests that Baker v. Nelson is binding precedent in the case.
The Second Circuit has just issued its opinion in Windsor v. USA, striking down Section 3 of the Defense of Marriage Act 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 the Defense of Marriage Act, which limits federal recognition of marriage only to opposite-sex marriages.
The Second Circuit ruled, applying heightened scrutiny, or “intermediate scrutiny” as they called it in the opinion. This form of review is more strict 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 – 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 write that there are four factors to consider when applying heightened scrutiny, and 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 argue 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 refuses to disagree with the dissenting judge’s belief that the law passes rational basis scrutiny.
That judge concurs in part and dissents 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 disagrees, writing that, “when Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular.”
The two judges in the majority conclude 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.”
The case has already been petitioned to the Supreme Court for review, before the Second Circuit held oral argument. The case has been ready for the Court’s conference to decide whether they will take it up since September 24, but no action has been taken in this case or any other challenges to Section 3 of DOMA.
Here is the opinion, h/t Kathleen:12-2335 #447
The dissent is here:12-2335 #448