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to Section One | to Arts & Entertainment
posted Friday, October 19, 2012 - Volume 40 Issue 42
DOMA dealt another blow
Section One
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DOMA dealt another blow

Court applies 'heightened scrutiny' test in declaring act unconstitutional

by Mike Andrew - SGN Staff Writer

A three-judge panel of the U.S. Second Circuit Court of Appeals has ruled that DOMA is unconstitutional in the case of Windsor v. U.S. The 2-1 decision, announced October 18, marks the eighth time a federal court has struck down the Defense of Marriage Act.

According to a statement from the ACLU, which represented plaintiff Edie Windsor in the case, the ruling is especially significant because it is 'the first federal appeals court decision to decide that government discrimination against Gay people gets a more exacting level of judicial review, known as 'heightened scrutiny.'

'Heightened scrutiny' is a stiffer legal test than the 'rational basis review' that previous court rulings have applied in finding DOMA unconstitutional, because it takes into account the history of discrimination against LGBT people as a specific group. 'Rational basis review' only requires that the law not be completely arbitrary or capricious.

DOMA FAILS THE TEST
'In this case,' the Second Circuit wrote in its decision, '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.'

The ruling was written by Chief Judge Dennis Jacobs, who was appointed by President George H. W. Bush. Judge Chester Straub dissented from the majority ruling, saying that courts should not intervene in politically controversial issues.

'Whether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide,' Straub wrote in his dissent, 'but rather an issue for the American people and their elected representatives to settle through the democratic process.'

DISCRIMINATION COSTLY
Edie Windsor, the plaintiff in the case, sued the federal government for refusing to recognize her marriage to her partner, Thea Spyer, after Spyer's death in 2009.

Windsor and Spyer, who were a couple for 44 years, were married in Canada in 2007, and were considered married by their home state of New York. Nevertheless, when Spyer died, Windsor was forced to pay $363,000 in federal estate taxes that she would not have had to pay if she had been married to a man.

In her lawsuit, Windsor argued that DOMA violates the equal protection guarantee of the U.S. Constitution because it requires the government to treat legally married same-sex couples as strangers.

'This law violated the fundamental American principle of fairness that we all cherish,' Windsor said. 'I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.'

A federal district judge ruled in favor of Windsor in June, but the House Bipartisan Legal Advisory Group (BLAG) appealed that decision. BLAG filed the appeal because the U.S. Department of Justice, which normally defends the constitutionality of federal laws, had determined that DOMA was unconstitutional and said it would no longer defend it.

SUPREMES STILL SILENT
On July 16, Windsor's attorneys filed a petition asking the U.S. Supreme Court to review the case without waiting for the Second Circuit decision, because Windsor is 83 years old and in poor health. To date, the Supreme Court has neither accepted nor rejected the petition.

Including Windsor, four DOMA cases have been referred to the Supreme Court. At least four of the nine Supreme Court justices must vote to take a case for the whole court to consider it, but the justices need not take any case referred to them.

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