New York’s Second Circuit Court of Appeals has just ruled in the case of Windsor v. United States, which challenged section 3 of the so-called Defense of Marriage Act. And as BuzzFeed’s Chris Geidner reports, for the second time a federal court has found the U.S. government’s exclusionary definition of “marriage” unconstitutional:
“[W]e conclude that Section 3 of the 5 Defense of Marriage Act violates equal protection and is 6 therefore unconstitutional,” the judges wrote.
Geidner notes that Supreme Court appeals are pending.
H/t: Towleroad
UPDATE: Metro Weekly has posted the court’s ruling and one judge’s dissent, along with some additional information about the current status of DOMA as it pertains to the Supreme Court:
Four DOMA challenges, including Windsor, have been petitioned for review by the Supreme Court, the ruling from conservative Chief Judge Dennis Jacobs is another win for marriage equality advocates and another loss for the Bipartisan Legal Advisory Group (BLAG), created by House Republicans to defend DOMA in court.
UPDATE #2: ThinkProgress reports that the author of the majority opinion, Chief Judge Dennis Jacobs, is “severely conservative” with a long list of conservative decisions. Yet Jacobs, who was appointed by George H. W. Bush, not only concluded that DOMA was unconstitutional, but ruled that laws which discriminate against gay people should be subject to heightened scrutiny — the same standard of judicial review applied to laws that discriminate against women. This is a major milestone in the fight against DOMA as it’s the first time that a federal appellate court has ruled that government attempts to discriminate on the basis of sexual orientation ought to be reviewed with this level of skepticism. And TP’s Ian Milheiser speculates:
If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.
UPDATE #3: According to the Washington Blade, the House Republican leadership, which heroically took up the defense of the unconstitutional Defense of Marriage Act after the Obama administration stopped defending it in court, has spent nearly $1.5 million in taxpayer dollars ($1,447,996.73, to be exact) in their noble cause malicious effort to postpone the inevitable arrival of federal marriage equality for as long as possible.
So what does this mean in the grand scheme of things? If the law has been ruled unconstitutional then what needs to happen before it’s taken out of law books completely? What effect would that have on state DOMA laws?
Firstly, a decision from a federal Court of Appeals is only binding on the states within the Court’s jurisdiction. For the 2nd circuit that’s Connecticut, New York, and Vermont. It requires the U.S. Supreme Court to uphold the decision before it applies nationwide.
Secondly, an appeals court decision doesn’t become effective until it issues its “mandate.” This is a technical requirement that generally happens 14 days after the opinion unless the Court–either on its own or by motion of one of the parties–puts it on hold (referred to as a “stay” of the mandate). This is what happened with the 1st Circuit decision in the Massachusetts DOMA cases.
With petitions pending before SCOTUS to hear several DOMA cases, including this one, I think it’s almost certain the Court will stay the mandate in this case, pending resolution by SCOTUS.
As to the question about state DOMA laws, it has no direct impact on those laws. Section 3 of the federal DOMA, which is at issue in this case, only addresses federal recognition of valid state marriages. It says nothing about whether a state must grant marriage to same-sex couples. However, if SCOTUS determines that laws discriminating against gays and lesbians must withstand heightened scrutiny (the holding in this 2nd Circuit decision), then it will be much harder for a state to justify denying marriage rights to same-sex couples and thus will make it more likely that any lawsuit challenging those laws would be successful.
Correction to my comment above: The mandate generally issues 21 days after the decision, i.e., 7 days after the deadline to file a petition for rehearing (which is 14 days after decision). Sorry about that….
Tim, in the “grand scheme of things” it means that it’s becoming harder and harder for any rational judge to conclude that Blag has a leg to stand on. The entire Blag rational boils down to “but we never liked those people.” And court after court has said: “that’s nuts, who cares? and it’s unconstitutional.” Liberal judges are doing so on the “but things change” rationale, and Conservative judges are doing it on a “why is gov’t picking on those people?” rationale. The liberals use “justice” and the conservatives use “liberty” but in the end it means that within just a few years the government at every level simply must include gay folks, and can’t exclude us. It means that with so many cases, and not just on DOMA, DADT, relating to gay folks, the Supreme Court is going to be very busy sorting it all out — but when Liberal and Conservative judges use such a wide disparity of reasons for getting rid of such laws the Supremes will realize that both sides are right: gay folks are decent tax paying citizens who don’t deserve to be treated as garbage by our own gov’t, and pay for the maltreatment.
It means that our 60 years of working at this is finally coming to an end on the legal front.
Now we’ll just have to deal with the idiots who still will hate us; which might never be solved.
Jim, you remind me of this quote from Bayard Rustin:
“[T]he job of the gay community is not to deal with extremists who would castigate us or put us on an island and drop an H-bomb on us….Our job is not to get those people who dislike us to love us. Nor was our aim in the civil rights movement to get prejudiced white people to love us. Our aim was to try to create the kind of America, legislatively, morally, and psychologically, such that even though some whites continued to hate us, they could not openly manifest that hate. That’s our job today: to control the extent to which people can publicly manifest antigay sentiment.”