Friday, October 19, 2012

Windsor v. United States overturns DOMA in 2nd Circuit

The Second Circuit Court of Appeals on Oct. 18, 2012 upheld a District Court opinion finding the federal Defense of Marriage Act (DOMA) unconstitutional. The decision in Windsor v. United States, follows an earlier decision striking down DOMA in the First Circuit, Massachusetts v. Health and Human Services Department. There are also two District Court decisions in the First Circuit, Gill v. Office of Personnel Management and Pedersen et al. v. Office of Personnel Management et al. which also challenge DOMA.(See's page of documents on these cases). The ACLU helps represent the plaintiff in Windsor, and provides a very complete page of documents for that case here.

The thing that is building excitement about the growing number of challenges to DOMA is the certainty that the Supreme Court will pick up one or another of these cases on appeal. The increasing number of jurisdictions that now have different rules for treatment of citizens because of these decisions puts pressure on the Court to resolve the differences.

Here is a NY Times article that includes a nice factual summary of the Windsor case. Because the federal government does not recognize same sex marriages, Ms. Windsor's inheritance from her deceased spouse was taxed at a much higher rate than it would have been had she been in a hetero-sexual marriage. But Ms. Windsor's statements make it clear that, for her, the law suit is much more personal than the money involved. She says she finds it
so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.
The article, of course analyzes the possible outcomes of a Supreme Court review of same sex marriage and challenges to the Defense of Marriage Act. The Windsor decision is interesting because it raises the standard of review to heightened scrutiny, and finds that the DOMA fails to pass this review. The standard of review, of course is set according to the history of discrimination of the class, which the Windsor court described as "quasi-suspect." The panel found the Defense of Marriage Act unconstitutional for violating equal protection.

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