Second Circuit Strikes Down DOMA — Initial Thoughts

It’s now already old news** on the interwebs, but the Second Circuit Court of Appeals (in a 2-1 decision) struck down the Defense of Marriage Act. (Actually, in fairness, I should say that the Second Circuit upheld the District Court’s (Judge Jones) decision striking down DOMA, as previously covered here.)

This is an important decision for a number of reasons. First, this case involved an actual plaintiff, in an actual marriage, who had suffered actual financial harm because of DOMA following the death of her wife. Under state law, the plaintiff was married. But DOMA rejected federal recognition of that marriage, and so the plaintiff was required to pay more than $300,000 in federal estate taxes she would not have paid had she been married to a man. So this is obviously a win for her. Congratulations to her and her lawyers.

Second, the Court of Appeals applied a heightened level of scrutiny in striking down DOMA. By comparison, the District Court applied only a rational basis review, as have many other courts on laws like DOMA regarding same-sex marriage. As the District Court showed, it is possible to invalidate laws like DOMA even applying more permissive levels of review. But by applying intermediate scrutiny to DOMA, the Court of Appeals has paved the way for the application of heightened scrutiny to other laws that discriminate against gays and lesbians.

Third, the opinion was authored by Second Circuit Chief Judge Dennis Jacobs. Full disclosure: I clerked for Judge Jacobs from 2006 to 2007, and I’m basically in the tank for him. That said, he is generally considered to be on the “conservative” or “right” side of the Second Circuit, partially based on his decisions and partially based on the fact that he was a Bush I appointee. I tend to think his overall work can’t be so easily pigeonholed (for example, he has authored many opinions protecting the rights of criminal defendants), but that’s totally beside the point. This opinion was authored by someone viewed as conservative, which will likely give the opinion some added force in the legal and political community. In other words, it cannot be easily written off as the “judicial activism” of some wacky liberal.

Finally, I want to quote the last substantive paragraph of the opinion, which really gets to the heart of the matter and which (in my opinion) is classic Judge Jacobs:

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. 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.


**Of course, I still beat CNN by a couple of minutes.


One thought on “Second Circuit Strikes Down DOMA — Initial Thoughts

  1. Pingback: DOMA Case Headed to the Supreme Court | Ziff Blog

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