DOMA ruled unconstitutional by the 2nd Circuit

Big news: The 2nd Circuit Court of Appeals struck down the Defense of Marriage Act as unconstitutional. You can download the opinion at Above the Law. A few notable things: First, the opinion is written by Jacobs, a very conservative justice. Second, the court evaluates DOMA using intermediate scrutiny, which is really important. Explainer below, for the non-lawyers (or non-legal-nerds) in the audience. From the opinion:

The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440-41; C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” Bowen, 483 U.S. at 602; and D) whether the class is “a minority or politically powerless.”

The court concludes that homosexuals are a quasi-suspect class that meets the standard for heightened scrutiny (meaning, basically, gay people fit the four factors listed above, but the historical mistreatment of gay people is not so bad that homosexuals are a suspect class requiring the most exacting and strict of review. As a general rule, religious and racial groups, and groups based on national origin or alienage, are “suspect classes”).

The level of review determines how strictly the court will evaluate the law — to what degree that law has to relate to a government interest, and how strong that interest needs to be. Intermediate scrutiny, which the court uses here, is what it sounds like — the middle level. The lower level is “rational basis” review, where the government only has to show that the law (or governmental action/policy) is rationally related to a legitimate governmental interest. It is the default level of review, and usually not used when a fundamental right is implicated, or when dealing with a suspect or quasi-suspect class. Intermediate review, which the court used here, looks at whether the law forwards an important governmental interest in a way that is substantially related to that interest. Intermediate review has been used in evaluating things like sex discrimination. The strictest level of review, strict scrutiny, looks at whether there is a compelling government interest for the law or policy, and whether the law/policy is narrowly tailored to fit that interest and is also the least restrictive way of achieving that interest. Strict scrutiny is typically used in cases about discrimination based on race, national origin, alienage and religion.

When the First Circuit evaluated DOMA, they used rational basis review. That the Second Circuit thinks discrimination against gay people merits intermediate scrutiny is a big step.

Back to the case: Once the Second Circuit court established that homosexuals are a quasi-suspect class, the court then evaluated whether DOMA could withstand intermediate scrutiny — whether DOMA is substantially related to an important government interest.

The court says no.

The reasons offered by BLAG (the pro-DOMA folks) for important government interests in DOMA were maintaining a uniform definition of marriage, saving money, preserving tradition and encouraging “responsible procreation.” Which, as an aside, are funny reasons — for gay couples to procreate, they have to take affirmative and thought-out steps, which to me is more “responsible” than the whoopsie! procreative tendencies of a lot of straights; and DOMA’s impact on the recognition of same-sex marriages across state lines is what’s making marriage less than uniformly defined. The court pointed out that DOMA does cause more discord and inefficiency than it promotes; DOMA surely does conserve federal dollars but that doesn’t justify excluding an arbitrarily-chosen group of individuals from government benefits; tradition is not a good enough reason to uphold a law; and while encouraging responsible procreation is a good thing, DOMA in no way creates incentives for straight couples to get married and have babies (what, married straight parents? You didn’t get married and reproduce just because the gays can’t?).

And then there’s this interesting bit at the end:

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.

For those not familiar with the American legal system, we have several tiers of state and federal courts. Basically, if you lose in one of the lower courts, you can appeal to a higher court; under certain circumstances the court will grant the appeal and reevaluate particular segments of the case. Cases can get appealed up and up and up through several layers of courts, but usually the outcomes are decided at the lower levels. Our twelve circuit courts, divided regionally, are the second-highest courts in the country; the next step up, if a decision from a circuit court is appealed, is the Supreme Court of the United States, which only grants review to a very small number of cases. Circuit courts are extremely influential and extremely powerful; they hear many more cases than the Supreme Court, and the law they make governs many more lower decisions. The Supreme Court often grants review of circuit court cases when there’s a split among the circuits, and on pressing Constitutional issues. So circuit court decisions on issues like DOMA are a Big Deal.

And this is a very good Big Deal decision.

Also very good: That BLAG has spent millions of dollars on these cases and loses every time.

Author: has written 5281 posts for this blog.

Jill has been blogging for Feministe since 2005.
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45 Responses

  1. Sue B
    Sue B October 18, 2012 at 1:48 pm |

    Thank you for the very clear definitions of the law. I really appreciate it.

    1. Comradde PhysioProffe
      Comradde PhysioProffe October 20, 2012 at 4:27 pm |

      Agreed. Really excellent explanation of the levels of scrutiny!

  2. Nicole
    Nicole October 18, 2012 at 2:03 pm |

    Thank you so much for this informative post; it’s the first I’ve seen today that explains why this decision was significant and I feel like I’ve learned something about our legal system :)

    Great news!

  3. Donna L
    Donna L October 18, 2012 at 2:16 pm |

    Great news. I do still worry about how the Supreme Court will rule when this comes before them. I especially don’t look forward to reading Scalia’s thoughts on the subject (he never, ever addresses it, in speeches or in writing, without referring to “homosexual sodomy”), even if they’re set forth — as I fervently hope — in a dissent.

    1. Octolol
      Octolol October 19, 2012 at 12:00 pm |

      Could we put forth a suggestion that for the sake of fairness he also use the term “heterosexual missionary” when talking about straight folks?

      1. Bagelsan
        Bagelsan October 19, 2012 at 7:25 pm |

        Hmm, I’d prefer he say “heterosexual doggy style” just to mix it up a bit.

  4. Marksman2010
    Marksman2010 October 18, 2012 at 2:23 pm |

    I especially don’t look forward to reading Scalia’s thoughts on the subject (he never, ever addresses it, in speeches or in writing, without referring to “homosexual sodomy”)

    Good grief.

  5. EG
    EG October 18, 2012 at 2:36 pm |

    Thanks so much for this clearly laid-out explanation. I have a question, though, something I don’t quite understand. When it says that “the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” I’m not clear on what it means. Surely being gay or not doesn’t affect a person’s ability to perform or contribute to society–or does it mean, not the person’s ability, but whether that characteristic means that legally they’re not able to perform or contribute to society? It must, might?

    Sorry for being thick-headed.

    1. Anon21
      Anon21 October 18, 2012 at 3:25 pm |

      I think it’s confusing because the factors, as phrased by the Second Circuit here, actually cut in different directions. The presence of factors 1, 3, and 4 cut in favor of suspect of quasi-suspect treatment, while the presence of factor 2, which is basically a characteristic that the government will often be justified in treating differently, cuts against recognition of suspect class status.

      It’s very odd that the appeals courts chose to phrase it the way it did, because the quote from Cleburne is actually “frequently bears no relation to ability to perform or contribute to society” (this with reference to the characteristic of sex or gender). If the Second Circuit had just left “no” alone instead of replacing it with “a,” all the factors would be pointing in the same direction, and the test as they phrase it would make much more intuitive sense.

    2. Donna L
      Donna L October 18, 2012 at 3:29 pm |

      EG, you’re hardly thick-headed, and I think you have the basic idea, except that it’s only when members of a class do have a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society” that this factor militates in favor of the challenged disparate treatment. (For example, this is why babies aren’t allowed to vote or drive cars: being 8 months old frequently bears a relation to one’s ability to evaluate political issues or reach a steering will. More seriously, this factor, among others, has been cited as one of the reasons justifying the upholding of mandatory retirement laws.) In this case, the decision holds with respect to this factor that “homosexuality has no relation to aptitude or ability to contribute to society,” and, therefore, that the factor weighs against disparate treatment. (The court rejected the argument that gay and lesbian people supposedly have a “diminished ability” to contribute to society in marriage, through procreation.)

      1. Donna L
        Donna L October 18, 2012 at 3:30 pm |

        “steering wheel,” obviously. My ability to contribute to society through proper spelling is clearly minimal.

  6. Anonymous Coward
    Anonymous Coward October 18, 2012 at 4:40 pm |

    Excellent writeup of the decision.

    One thing that jumped out at me was that the court held that sexual orientation is a quasi-suspect classification, but managed to avoid the obvious and easy way to get there: by noting that any discrimination on the basis of sexual orientation necessarily includes discrimination on the basis of sex (which is also quasi-suspect)

  7. Djuna Tree
    Djuna Tree October 18, 2012 at 5:15 pm |

    Thank you so much for this great explanation of the decision!

    (Can I ask that you don’t use “gay” as a noun? I’m referring to this style guide. Also, this decision affects lesbians as well as gay people, and indeed people who don’t identify in either of those ways.)

    1. Djuna Tree
      Djuna Tree October 18, 2012 at 5:17 pm |

      (Ditto “homosexual”.)

      1. T. Smythe
        T. Smythe October 18, 2012 at 5:32 pm |

        It’s curious – at least to me – that while ‘gay’ as a singular noun is horribly grating, the plural is widespread and (to me, at least, and I think most people) completely inoffensive. I suppose ‘black’ is a rough analogy, but e.g. ‘lesbian’ works in both the singular and the plural.

        I do know some newspaper style guides – as well as the GLAAD page you link – advise against the use of ‘gay’ as a noun at all, but I think they’re off base on this point.

        1. Donna L
          Donna L October 18, 2012 at 5:43 pm |

          I don’t have a problem with using “gays” as a shorthand plural noun when referring to “gays and lesbians,” and there certainly are plenty of gay people who use “the gays” as a jokey way of referring collectively to gay men, even though I think (and I know my son thinks) that it sounds condescending when used by straight people. (And I’m not even counting the pejorative usage by homophobes.)

          But I think T. Smythe is right that using “gay” as a singular noun to refer to someone is always offensive.

          As for the use of “homosexual” as a noun, it is, unfortunately, the way most legal decisions are written. I don’t like it either.

        2. Donna L
          Donna L October 18, 2012 at 5:45 pm |

          Personally, I almost never use “gays” as a noun. I usually say “gay and lesbian people” or “gay men and lesbians.”

        3. T. Smythe
          T. Smythe October 18, 2012 at 7:01 pm |

          I agree, by the way, that ‘homosexual’ as a noun has gained a pejorative connotation, at least to me, although I imagine that people using it in court decisions think of the word as neutral and in a vaguely formal or technical register.

          Personally, I don’t think I ever use homosexual as a noun, and tend to use the adjective a lot either in medical or otherwise highly ‘antiseptic’ contexts (which is probably where the pejorative sense originated, so perhaps I should stop), or else in contexts (e.g. discussing ancient Rome) where the contemporary, western anglophone terminology doesn’t make a lot of sense.

      2. Hexiva
        Hexiva October 28, 2012 at 11:06 pm |

        I like the word ‘homosexual’ because I kinda feel like ‘gay’ means both homosexual and homoromantic, and it’s sometimes relevant to distinguish between the two.

  8. Sean Geary
    Sean Geary October 18, 2012 at 6:05 pm |

    This is such a great job of clarifying legalese. I think it’s a monumental step that one of the circuits (and a conservative judge) has defined we gay and lesbian peeps (and hopefully someday transgendered) as at least a quasi-suspect class. It requires a level of scrutiny that has not been afforded to us in the past. Even though I know Scalia, Thomas, and Alito will be in the dissent on this one, I just don’t see how from a legal stand point someone cannot acknowledge that my hubby and I are being denied equal protection under the law. We’re talking civil law! Not Catholic, Jewish, Muslim, or any other religious law. Heck, Gov. Romney’s ancestry has polygamy in it and that’s only a few generations ago. To continue with the bizarre perpetration that marriage has always been one man one woman is defying a look at the facts of human history. Some day. And if they argue it correctly, I just don’t see how saying you get to be treated differently than this group is not a violation of our 14th Amendment rights. Excellent job and I’m glad you popped up in my Google search. :P

  9. Unree
    Unree October 18, 2012 at 8:33 pm |

    (New thread, don’t want to nest) Loving was decided in 1967. What happened to the Lovings was hideous. A sheriff barged into their home when they were asleep in bed and demanded to know what they were doing. They were convicted of the crime of miscegenation and banished from the state of Virginia–that was a favor from the judge, who did it instead of putting them in prison. They were country people, unhappy in D.C. where they had to live in exile.

    Mildred Loving took the initiative and wrote to Bobby Kennedy, the attorney general, who she thought sounded like a good egg based on his civil rights work. She said, is what happened to us against the law? He referred her to lawyers who took the case to the Supreme Court.

  10. From Hopeless Bookworms’s (Blog) Reading Pile: | hopelessbookworm

    [...] at Feministe breaks down today’s DOMA ruling for non-legal [...]

  11. DAS
    DAS October 19, 2012 at 2:47 pm |

    I’m kind of surprised this case wasn’t decided on what (to my non-legal mind) was the simple basis that here DOMA results in sex/gender discrimination: if Windsor were a man, she wouldn’t have to pay this particular tax, but she does being a woman.

    1. Donna L
      Donna L October 19, 2012 at 5:28 pm |

      Technically, the theory is that it’s not sex discrimination because men and women are equally affected if they enter into a same-sex marriage.

  12. Sarah Dalton
    Sarah Dalton October 20, 2012 at 10:50 pm |

    what I like about this is that every time they spend millions of dollars and lose, they also set a precedent that will be used against them next time.

  13. Excellent News For Those Who Care About Civil Rights | Comradde PhysioProffe

    [...] down key parts of DOMA based on intermediate scrutiny analysis under the Fourteenth Amendment. As Jill Filipovic explains really well, this ruling is important beyond just DOMA, in that it sets the precedent that gay and lesbian [...]

  14. Buttered Lilies
    Buttered Lilies October 21, 2012 at 9:37 pm |

    So, assuming this goes to the Supreme Court, if SCOTUS did not rule DOMA unconstitutional, would that mean gay people would no longer constitute a quasi-suspect class?

    1. zuzu
      zuzu October 22, 2012 at 8:58 pm |

      Only if SCOTUS deliberately overruled that particular holding. Which could happen. The courts which have considered this issue have pretty well avoided making any rulings on the level of scrutiny, because they’ve found that DOMA doesn’t stand up to rational review.

  15. Good News on DOMA | On Becoming a Domestic and Laboratory Goddess

    [...] Doma ruled unconstitutional (h/t CPP)  Good explanation for those “for the non-lawyers (or non-legal-nerds) in the audience” [...]

  16. JC
    JC October 22, 2012 at 1:20 pm |

    Some music I heard recently, the video they put together for this is excellent.

    Macklemore and Ryan Lewis: Same Love feat. Mary Lambert: http://www.youtube.com/watch?v=hlVBg7_08n0

  17. zuzu
    zuzu October 22, 2012 at 8:54 pm |

    Just one point of clarification — this decision doesn’t strike down all of DOMA, just Section 3 of DOMA, which defines “marriage” for the purpose of any federal benefit or act or obligation (such as estate taxes, at issue in the Windsor case) as between one man and one woman. The section which allows states not to recognize valid marriages performed in other states remains standing.

    I’m actually about a third of the way in to my legal writing class, where my students are dealing with a case file involving a lot of the same claims as in Windsor, so I’ve read a lot of the earlier cases. Until the 2d Circuit decided to just go for it, the Circuit courts that considered the issue — 1st and 9th among them — danced away from deciding what level of scrutiny to apply to sexual orientation cases because they could decide that the laws at issue did not pass the rational basis test.

  18. Emily
    Emily November 4, 2012 at 9:08 am |

    Who are the courts considering when they talk about ‘homosexuals’? How do they define that?
    Your article refers to the gays and to gay and lesbian couples – does quasi-suspect status cover bisexual people as well?

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