2nd Circuit Panel Declares DOMA Section 3 Unconstitutional; Final Reckoning in the Supreme Court Is One Step Closer

A panel of the U.S. Court of Appeals for the 2nd Circuit in Manhattan ruled on October 18 that Section 3 of the federal Defense of Marriage Act (DOMA), which provides that the federal government will not recognize same-sex marriages, violates the constitutional guarantee of equal protection of the laws.  Writing for the majority of the 2-1 panel, 2nd Circuit Chief Judge Dennis Jacobs said, "DOMA's classification of same-sex spouses was not substantially related to an important government interest," and thus failed to satisfy the test of heightened scrutiny that the majority of the panel applied to the case.  Circuit Judge Christopher Droney joined Judge Jacobs' opinion.

Dissenting, Circuit Judge Chester Straub insisted that the court should have applied the less demanding "rational basis" test, under which he concluded that the statute was constitutionally defensible.  He also argued that the U.S. Supreme Court's 1971 decision, Baker v. Nelson, dismissing an appeal from the Minnesota Supreme Court's ruling against same-sex marriage, was a binding precedent that required reversing the district court's ruling.  Judge Straub argued that the question whether same-sex couples should be able to marry and whether such marriages should be recognized by the federal government was for the people to decide through the political process, not for the courts.

The court issued the decision with startling speed, considering that the case was argued just weeks ago, on September 27.  After the district court issued its decision in the spring, attorneys from the American Civil Liberties Union, representing plaintiff Edith Windsor in her quest for a refund of estate taxes levied upon the death of her spouse Thea Spyer, petitioned the U.S. Supreme Court for direct review bypassing the 2nd Circuit.  The ACLU pointed out that the 83-year-old Windsor needed an expeditious decision and that the Supreme Court had already received petitions to review a similar decision by the 1st Circuit Court of Appeals involving same-sex married couples from Massachusetts. 

The Bipartisan Legal Advisory Group of the House of Representatives (BLAG), which has been defending the statute in court since the Justice Department announced in February 2011 that Attorney General Eric Holder and President Barack Obama had concluded that the law was unconstitutional, opposed direct review in the Supreme Court.  The 2nd Circuit panel refused to delay considering the case pending a Supreme Court decision on whether to grant the ACLU's petition.  Earlier in September, the Solicitor General's office filed its own petition with the Supreme Court joining the ACLU's request for early review in this case.  Now the Supreme Court will have the benefit of the 2nd Circuit's decision as it considers whether to grant the pending petitions in DOMA cases, which also involve distict court rulings from Connecticut and California.

The panel majority's conclusion that DOMA Section 3 is unconstitutional was not surprising, and lines up logically with other recent rulings by several federal courts.  What is different about this ruling is the court's determination that the "heightened scrutiny" test should be used to decide the case.  Depending what happens next, this could make the 2nd Circuit the first federal circuit to adopt a "heightened scrutiny" standard for evaluating claims of sexual orientation discrimination under the constitutional guarantee of equal protection of the laws.

Terms such as "heightened scrutiny" and "rational basis" don't actually appear in the Constitution.  They are labels that have been adopted by legal scholars and some Supreme Court justices to describe the analytical approach that the federal courts use to determine whether a particular statute or government policy violates the 5th or 14th Amendment Due Process and Equal Protection requirements.  Observing that there are usually "winners" and "losers" when a legislature passes a law extending a benefit or regulating an activity, the Supreme Court has found that generally the courts should not second-guess the policy judgements of legislators, so long as there is some rational basis for what the legislature is doing.

Thus, statutes are usually deemed to be presumptively constitutional, and those who would challenge them bear the heavy burden of proving that there was no rational basis for what the legislature did.  In the Massachusetts DOMA case, the 1st Circuit purported to apply this rational basis approach, but in a more demanding way in light of the history of discrimination suffered by gay people at the hands of government and the burden that DOMA places on the traditional right of the states to define marriage. The Justice Department's current position on DOMA is that Section 3 would survive ordinary rational basis review.

When the Justice Department changed its position on the constitutionality of DOMA in February 2011, it did so based on its determination that the courts should use the "heightened scrutiny" approach, which the courts have adopted since the 1970s for evaluating constitutional sex discrimination claims.  Under this approach, the burden falls on the government to show that a challenged statute actually advances an important governmental interest when the policy discriminates based on a "quasi-suspect classification" such as sex. The Justice Department now argues, as it did before the 2nd Circuit on September 27 in the Windsor case, that DOMA fails that test.

The Supreme Court has examined various factors to determine whether heightened scrutiny should apply, such as whether there is a history of discrimination concerning the disadvantaged group, whether the trait identifying the group is relevant to the ability to participate in society, whether there are obvious, immutable or distinguishing characteristics that define the group, and whether the group is at a political disadvantage in trying to protect its interests.  The ultimate question in selecting the level of review is whether it is likely that a legislative decison was based on prejudice or bias rather than objective policy concerns.  The 2nd Circuit panel majority concluded that gay people qualify for "heightened scrutiny" review on all four of these grounds.

Thus, the 2nd Circuit panel's conclusion that heightened scrutiny applies has significance beyond the decision of this particular case, since the decision would be binding on all federal district courts within the 2nd Circuit (Vermont, Connecticut and New York) and would also be followed by other three-judge panels of the 2nd Circuit unless the case is reconsidered by all the judges of the circuit (called "en banc review").  Any sexual orientation discrimination asserted under the Constitution would thus have a much greater chance of succeeding.

Presumably the ACLU will now renew its petition to the Supreme Court, this time as a petition to take up and affirm the 2nd Circuit's ruling, and presumably the Solicitor General will also support review, since it is important to the federal government to get a definitive ruling on DOMA's constitutionality.  Having lost in the 2nd Circuit, BLAG might seek en banc review by the full bench of the circuit, but events are moving rather fast and it seems more likely that this case would go directly to the Supreme Court, which rarely denies a request by the Solicitor General to review a lower court decision striking down a federal statute.

Roberta Kaplan, a partner at the Manhattan-based law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP argued the case before the 2nd Circuit for Edith Windsor, as a cooperating attorney for the ACLU.  Acting Assistant Attorney General Stuart F. Delery argued on behalf of the Justice Department, and Paul D. Clement, a former U.S. Solicitor General who is now a partner at the Washington, D.C., law firm Bancroft PLLC, argued for BLAG, which has reportedly exhausted its $1.5 million authorized budget for defending DOMA and will have to seek increased spending authority from the House to continue paying Clement and his law firm.

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