Another Court of Appeals Knocks Down DOMA
October 18, 2012 by Ty Cobb, Director of Global Engagement
The Second Circuit Court of Appeals just released a decision finding the Defense of Marriage Act (DOMA) unconstitutional in Windsor v. U.S. As you may recall, in this case, Edie Windsor is challenging the hefty tax penalty she faced when she inherited her late wife’s estate because of DOMA, a penalty that would not apply if her spouse had been a man.
The Second Circuit, which covers New York, Connecticut and Vermont, has now joined the First Circuit, which covers Rhode Island, Massachusetts, Maine, New Hampshire and Puerto Rico, in recognizing that DOMA is unconstitutional. The Second Circuit, in an opinion penned by one of the most conservative judges on the Second Circuit, found that discrimination against gay and lesbian individuals should be subject to intermediate scrutiny, which is a heightened level of court scrutiny, and that DOMA’s advocates could not articulate an important government interest related to passing the discriminatory law. It is notable that this is the first time a federal court of appeals has applied this exacting level of scrutiny to a constitutional challenge of DOMA.
The Republican-controlled House of Representative has spent 1.5 million dollars of taxpayer money defending DOMA in court, and has now lost at court six times in a row. Five cases, including Windsor, have applied for Supreme Court review next year. We will know in the upcoming weeks whether or not the Supreme Court plans to review the constitutionality of DOMA next spring.
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