U.S. Marriage Act Is Unfair to Gays, Court Panel Says

October 19th, 2012 by Staff

(nytimes.com) The 2-to-1 ruling, by the Court of Appeals for the Second Circuit in New York, came as the panel struck down the federal law prohibiting federal recognition of same-sex marriage. It is the first time that a federal appeals court has applied this level of constitutional protection — known as heightened scrutiny — to those unions. The case is now considered by some legal scholars to be the leading candidate for a Supreme Court review of the same-sex marriage issue.

Thursday’s decision was the second by a federal appeals court striking down the Defense of Marriage Act. Now the case, Windsor v. United States, could be considered by the Supreme Court, or the court could choose other cases in its pipeline concerning same-sex marriage. Those include an earlier decision on the act by the First Circuit in Boston and one from the Ninth Circuit overturning California’s ban on same-sex marriage. It could also decide to hear all of them.

“It’s an incredible moment in the struggle for gay rights in this country,” said James D. Esseks, director of the American Civil Liberties Union’s project dealing with lesbian, gay, bisexual and transgender issues.

The new case was brought on behalf of Edith Windsor of New York City, who married her longtime partner, Thea Clara Spyer, in 2007 in Canada. When Ms. Spyer died in 2009, Ms. Windsor inherited her property. Because the Internal Revenue Service was not allowed, under the Defense of Marriage Act, to consider her a surviving spouse, she faced a tax bill of $363,053 that she would not have had to pay if the marriage had been recognized.

Because the Supreme Court now has disagreement among circuits on a major issue of law involving the Defense of Marriage act, “this makes it more likely” that the Supreme Court will take up the cases, said Douglas NeJaime, an associate professor of law at Loyola Law School in Los Angeles. He said the most important justice in consideration of marriage cases was likely to be Justice Anthony Kennedy, who has sided with the liberal majority on such cases as Lawrence v. Texas, in which he wrote the opinion that struck down state sodomy laws.

As Justice Kennedy has proved mindful of federalism issues, Professor NeJaime said, he might be reluctant to take a case in which federal courts have struck down a state law like Proposition 8, in California. The Defense of Marriage Act cases, by contrast, struck down a federal law, and any decision by the Supreme Court would have an effect only in states that allow same-sex marriage. “This is the kind of case that would appeal to Justice Kennedy for the court’s first intervention on same-sex marriage,” he predicted.

It could also be a likelier case for the court to take instead of the First Circuit case because it could be heard by the full court, Professor NeJaime said. Justice Elena Kagan might recuse herself from hearing the First Circuit case because of her former role as solicitor general, leaving the possibility that the other justices could find themselves in a 4-4 tie.

Congress passed the Defense of Marriage Act in 1996, and in 2010 a federal judge in Massachusetts struck down the law as unconstitutional, declaring that restrictions on same-sex marriage had no rational basis and failed even the most lenient test for constitutional scrutiny. That decision was upheld in May 2012 by the Court of Appeals for the First Circuit, which also declared the act unconstitutional.

The Obama administration initially defended the marriage act under the Department of Justice’s traditional role of defending acts of Congress as presumptively constitutional. In February 2011, however, the Justice Department declined to defend the act in court, though the government continued to enforce the law. The House created what it called the Bipartisan Legal Advisory Group to take on the case under the leadership of Paul Clement, a former solicitor general in the administration of President George W. Bush.

Mr. Clement did not respond to requests for comment.

The majority opinion on Thursday was written by Judge Dennis Jacobs, the chief judge of the circuit; he was appointed by the first President Bush. The decision was joined by Christopher F. Droney, who was appointed by President Obama. Judge Chester J. Straub, appointed by President Bill Clinton, filed a partial dissent in which he argued that the issue of same-sex marriage “is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process.”

The court in the Windsor case parted ways with previous courts by elevating the standard of review for laws restricting same-sex marriage to what is known as “heightened scrutiny,” and which is based in large part on whether the people subject to the law have been discriminated against.

“It is easy to conclude that homosexuals have suffered a history of discrimination,” the court wrote. Thus they are part of what the law refers to as a “quasi-suspect” class that deserves any law restricting its rights to be subjected to such “heightened scrutiny.” Because the law could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection clause of the Constitution.

Ultimately, Judge Jacobs wrote, the court’s legal analysis “sidesteps the fair point that same-sex marriage is unknown to history and tradition,” but those are questions concerning “holy matrimony,” not the civil status recognized under the law. “A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it,” he wrote. “For that, the pair must go next door.”

Ms. Windsor, speaking on Thursday afternoon at a news conference, proclaimed herself “thrilled” by the decision. Ms. Windsor, who is 83, said that she found it “so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.”


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