Good News from the Federal Appeals Court on DOMA

More good news on the appellate court DOMA front. The Second Circuit Federal Court of Appeals has upheld the summary judgment ruling in the appeal of Windsor v. USA, Docket No. 12-2335-cv(L), issued October 18, 2012. Edith Windsor’s wife Thea died in 2009, and because their Canadian marriage was not recognized by the IRS, Thea’s estate (and thus Edith) had to pay more than $300,000 in estate taxes. Had they been recognized as legal spouses, her wife’s substantial estate would have passed to Edith tax-exempt. Whatever sympathy one might or might not have for such wealthy lesbians, the issue is one of equity. Straight widows are entitled to inherit an unlimited amount of money from their husbands, tax free, and so should lesbian widows.

The justices based their ruling on the following key factors.

First, they ruled that even though same-sex marriage was not recognized in New York State at the time Thea died, they were able to “predict” that the state of New York would have recognized their marriage. They based that conclusion on the positive ruling from most of the intermediate New York appellate courts, and thus they did not see the need to refer the question to the New York Supreme (highest appellate) court.

Second, they concluded that the 1971 United States Supreme Court’s affirmation of the Baker same-sex marriage case was not binding on them. To some degree this is a highly technical issue, since others (including the dissenting judge) had argued that the summary disposition of the Baker case was binding precedent. Perhaps most importantly, the justices in this case found other rulings of the United State Supreme Court that were issued post-Baker (i.e. the Lawrence decision) that justified this conclusion.

Third, they concluded that same-sex couples are entitled to “heightened scrutiny” in the review of the passage by the United State Congress of the Defense of Marriage Act. Again, this is a fairly technical issue, but it’s an important one. If only “ordinary” scrutiny is used to evaluate the law, it only has to have a rational basis, and nearly every law withstands such a review. There are certain classifications that are “strictly” scrutinized, such as those that affect racial and gender minorities, and those laws are almost always struck down. Here, the justices applied an “intermediate” level of scrutiny, which resulted in a closer analysis of DOMA to determine whether it should be upheld as constitutional. The Court’s invocation of this mid-level scrutiny was that lesbians and gay men have historically suffered from social and political discrimination, unrelated to their ability to contribute to society, and similarly they have been the targets of political and legal discrimination.

Lastly, the justices readily concluded that under the heightened scrutiny they elected to apply to their analysis, there wasn’t sufficient justification to uphold DOMA. Marriage was traditionally been a matter of state law, not federal law, and there was simply no good reason for the federal authorities to create their own definition of marriage.

Thus, the Court of Appeal upheld the trial court’s summary judgment, and concluded that DOMA is unconstitutional, as applied to a couple living in a state that recognizes their marriage.

Two crucial points to keep in mind. First, under this Court’s approach only those couples that live in a recognition state would benefit from federal law protection. If Edith and Thea had moved to Pennsylvania, a non-recognition state, most likely the Court would not have extended federal marriage protections to them. And second, this case will most likely become combined with the other cases involving DOMA that are pending at the United States Supreme Court. Assuming the Court elects to take up these cases, we won’t know until some time next year whether this Court’s wise decision will be the law of the land.

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