Defense of Marriage Act Discriminates Against Gays, Federal Court Rules

The federal government’s refusal to recognize same-sex marriages — including those considered legal in several states — is unconstitutional, a federal court has ruled.

In a 2-1 decision, the 2nd U.S. Circuit Court of Appeals on Thursday (October 18) said the “Defense of Marriage Act” (DOMA) discriminates against gay Americans, a group the court labeled “a politically powerless minority.”

“It is easy to conclude that homosexuals have suffered a history of discrimination,” Chief Judge Dennis Jacobs wrote for the majority. “Without political power, minorities may be unable to protect themselves from discrimination at the hands of the majoritarian political process.”  

That’s what happened, the court ruled, to Edith Windsor, a lesbian widow whose marriage was recognized in New York. She was made to pay $360,000 in federal taxes to inherit her wife’s estate.

Had Windsor been married to a man, she would have inherited the husband’s estate untaxed. But DOMA, enacted in 1996, defines marriage as only between a man and a woman and denies such benefits to same-sex partners — including those whose marriages are legally recognized by states.  

Windsor was backed by three states: Connecticut, New York and Vermont. The states contended the federal law essentially “un-marries” couples, violating the couples’ rights and infringing upon states’ right to regulate marriage.   

“Today’s decision is a major step forward in the fight for equality,” New York Attorney General Eric Schneiderman said in a statement. “I am pleased that the court recognized that the federal Defense of Marriage Act lacks an adequate justification and violates the equal protection clause of the U.S. Constitution.”

The House Bipartisan Legal Advisory Group, which stepped in to defend DOMA after the Obama administration announced it would no longer do so, contended the law furthers several government interests, including creating a uniform definition of marriage, limiting financial incentives doled out to couples, preserving a “traditional understanding of marriage” and advancing “responsible childrearing.”

The majority refuted each of those arguments, saying some of them weren’t “substantially related to an important government interest,” while others weren’t fulfilled by DOMA.

“Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony,” Jacobs wrote. “Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.”

In some respects, the decision mirrors the ruling from a Boston-based court in May, but the New York ruling goes further, specifying that gay Americans are a group meriting protection. The court granted a level of review called “heightened scrutiny,” which requires the government to justify treating one group differently from others.

In a dissenting opinion, Judge Chester Straub said the court should have granted the law a lower level of scrutiny.

“The discrimination in this case does not involve a recognized suspect or quasi-suspect classification. It is squarely about the preservation of the traditional institution of marriage and its procreation of children,” he wrote. “The public policy choice set forth in DOMA is to be made by Congress, not the Judiciary.”

Ultimately, the Supreme Court may take up the issue.

Six states along with the District of Columbia recognize same-sex marriages. Governors in Maryland and Washington signed legislation earlier this year to join those states, but opponents gathered enough signatures to force a ballot vote on the issue in November.

Mainers will also consider the question on Election Day, while voters in Minnesota will decide whether to enact a constitutional ban on same-sex marriage, a decision North Carolina made in May.