Thursday, the 2nd U.S. Circuit Court of Appeals ruled in a 2-1 opinion that the Defense of Marriage Act is unconstitutional stating section 3 violates the “equal protection” clause. The 1996 law prevents the federal government from recognizing same-sex marriages and allows individual states to disregard such marriages, even though legal in another state or jurisdiction.
Lesbian Edith “Edie” Windsor, 83, challenged DOMA following the death of her partner of 44 years, Thea Clara Spyer. Windsor and Spyer were at last married in Canada in 2007, after getting engaged in 1967. Spyer suffered complications related to her multiple sclerosis, resulting in her death in 2009. Windsor was then hit with a $363,053 federal estate tax bill after being denied a spousal deduction under DOMA, even though her marriage would have been recognized by the State of New York at the time of Spyer’s death.
Chief Judge Dennis Jacobs wrote in his opinion, “For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death.”
Even though New York would not permit same-sex marriages until 2011, Jacobs cited case law opining New York’s common-law marriage recognition rule would have applied. The court also found Windsor’s case warranted “heightened scrutiny”, a more stringent form of judicial review.
Jacobs wrote, “In this case, 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 New York appeals court is the second federal court to rule against DOMA. This past May, the 1st U.S. Circuit Court of Appeals ruled DOMA cannot affect same-sex marriages in states that permit them. They did not find that heightened scrutiny applied, however.
The Department of Justice has declined defending the Windsor case as of Feb. 23, 2011. The Bipartisan Legal Advisory Group of the U.S. House of Representatives has since retained counsel and taken up the effort of defending DOMA.
Sept. 19, Justice Ruth Bader Ginsburg said of same-sex marriage in an address at the University of Colorado Law School, “I think it’s most likely that we will have that issue before the court toward the end of the current term.”