By: Cortelyou Kenney, FellowPosted on October 19, 2012 Issues: Issues Before the Courts Judges & Courts

This Thursday, the Second Circuit ruled 2-1 that Section 3 of the Defense of Marriage Act (DOMA) violates the Equal Protection Clause of the U.S. Constitution. DOMA defines marriage under federal law as between one man and one woman. The Second Circuit’s ruling continues a recent string of decisions striking down Section 3 of DOMA, which began with the Northern District of California’s ruling in Golinski v. OPM in February and continued with the First Circuit’s ruling in Gill v. OPM

In Windsor v. United States, the Second Circuit concluded that laws discriminating against gays and lesbians were subject to “heightened” or “intermediate scrutiny” under the Constitution. According to the Court, heighted scrutiny applies based on the history of discrimination against gays and lesbians and their relative political disempowerment. Heightened scrutiny is the same constitutional standard of review that applies to gender and the Second Circuit here used gender discrimination as an analogy to the discrimination faced by gays and lesbians. Laws subject to heightened scrutiny are presumed to be unconstitutional, unless the challenged legislation is shown to be at least substantially related to an important purpose. In other words, the justification for the law must be “exceedingly persuasive.”

The Second Circuit found that the DOMA failed to meet heightened scrutiny because the purposes given for the law — uniformity at the federal level on marriage, conservation of federal resources, preserving a traditional definition of marriage, and “responsible” child-rearing — were not promoted by the law.

With regard to federal uniformity, the Second Circuit noted that Congress has historically let states determine family law, which varies widely from place to place. According to the Court, DOMA created more “discord” than uniformity. The Second Circuit found that DOMA is not substantially related to fiscal matters because the law touches on thousands other non-financial laws. Finally, they found that the law did not promote a traditional understanding of marriage because states were free to change their own definitions of marriage. In reaching its decision, the Second Circuit rejected arguments from the House of Representatives, which hired counsel after the DOJ declined to defend the Act.

The dissent, authored by Judge Straub, said that the Supreme Court had never created a “quasi-suspect classification” for gays and lesbians, and Judge Straub said he would not have done so here based on existing Supreme Court precedent.

This new ruling, in addition to the Ninth Circuit’s decision in Perry v. Brown that struck down Proposition 8, adds to the growing consensus that same sex marriage restrictions violate the federal constitution. The Supreme Court may address these issues in this coming term as it has already been asked to review both other DOMA decisions and was also asked to review the Ninth Circuit’s decision in Perry.

Stay tuned for updates!