Ruling Today is GREAT Victory for Gay-Rights Advocates

The Court Case – Windsor v. United States

Eighty-three Edith “Edie” Windsor, of New York City, brought the case to court. Windsor’s wife Thea Speyes, whom she had been with for over forty-four years, died in 2009. Thea left all of her property to her spouse, but because the state-recognized legal marriage wasn’t recognized by DOMA (the federal Defense of Marriage Act), Windsor was asked to pay $363,000 in federal estate taxes. Had she been married to a man, she would have been entitled to a marital deduction.

In her lawsuit, Windsor argued that DOMA violates the equal protection guarantee of the U.S. Constitution because it requires the government to treat same-sex couples who are legally married as strangers. The American Civil Liberties Union and NewYork Civil Liberties Union helped to represent her along with Robbie Kaplan, a well-known gay-rights legal advocate, of the firm Paul Weiss, Rifkind, Wharton & Garrison, LLP.

Windsor’s rationale was that “this law violated the fundamental American principle of fairness that we all cherish. I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”

What The Court Ruled

By striking down DOMA, the Second Circuit court held that government discrimination against same-sex married couples is now assumed to be unconstitutional. Defending DOMA lawyers were not able to provide constitutional grounds for treating married same-sex couples differently than heterosexual married couples.

The Second Circuit Court of Appeals struck down the part of the law that prohibits the federal government from recognizing same-sex marriage in states where they are legal, such as New York. The decision was 2-1, with a conservative George Bush-appointed Judge Dennis Jacobs writing for the majority. Because the Justice Department had asked the Supreme Court for expedited consideration of this case, it was pending before the appeals court and the Supreme Court simultaneously.  It is expected that the Supreme Court will probably rule on that petition in late November or early December.

“Heightened Security” for First Time in Federal Appeals Court

This is the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review called “heightened security.” Jacobs’s opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution.

Section 3 of DOMA requires “heightened security” because all four of the following factors justify it: 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 discernibly 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.

Not The First Case

Last May, the First Circuit of Appeals struck down DOMA in Gill v. Office of Personnel Management, a case out of Massachusetts, but it did not rule that sexual-orientation classifications were entitled to heightened constitutional scrutiny.

What Does the Future Hold for Gay Marriage?

This year will decide Proposition 8 in California. That case asked the Court to hold that there is a federal constitutional right to same-sex marriage. This is more progressive because once a state decides to allow same-sex marriage, the federal government must recognize it too.

In November, Maine, Maryland and Washington State will vote whether to allow same-sex marriage. Same-sex marriage has become legal in six states, but through court decision and legislative action.  In Minnesota, voters will decide whether to amend the state’s constitution to prohibit same-sex marriage.

There’s much at stake this November, but if the Supreme Court agrees with Jacobs who is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification, state discrimination based on sexual orientation could be eliminated.