Despite wasting over $1.5 million dollars of tax payers money John Boehner and House Republicans have spent to pay private attorney Paul Clement, a former U.S. solicitor general under the Bush administration, to defend DOMA, again today they were dealt another loss as the U.S. Second Circuit of Appeals has upheld and earlier ruling in the Edith Windsor versus the United States of America that DOMA the Defense of Marriage Act is indeed unconstitutional.
Legally the case is about the constitutionality of Section 3 of the Defense of Marriage Act of 1996 While Windsor was treated as her spouse under New York State law, and she was allowed to inherit what her spouse had left her without being taxed, the same as any heterosexual surviving spouse.
But under federal law, it was a very different story. Under DOMA, the United States government does not recognize marriages between members of the same gender, and thus will not confer any legal spousal benefits to homosexuals, including the ability to sponsor a foreign partner, file taxes jointly, or bequeath property without taxation. So Windsor was ordered by the IRS to pay $360,000 by the IRS.
A federal district court agreed with them—one of five such district-court losses the anti-gay law has suffered—handing Windsor her first legal victory.
But House Speaker John Boehner instructed the (un) Bipartisan Legal Advisory Group (BLAG) to defend the law in court and appealed it to the Second Circuit.
And today the Second Circuit applied heightened scrutiny, or “intermediate scrutiny” as they called it in the opinion to uphold the federal district courts finding that DOMA is indeed unconstitutional with one judge concurring in parts and dissenting in others, writing that the law would be constitutional if reviewed under the more lenient rational basis standard of review.
Note of interest. Chief Judge Dennis Jacobs, who is one of the most conservative judges on the Second Circuit wrote the opinion.
The ACLU Press Release:
A federal appeals court ruled today that the so-called “Defense of Marriage Act” (DOMA) unconstitutionally discriminates against married same-sex couples. In striking down DOMA, the court held that government discrimination against lesbians and gay men now is assumed to be unconstitutional and that DOMA’s defenders could not offer any good reason for treating married same-sex couples differently from all other married couples. This is the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review, known as “heightened scrutiny.” The law had been challenged by Edith “Edie” Windsor, who sued the federal government for failing to recognize her marriage to her partner Thea Spyer, after Spyer’s death in 2009. Windsor and Spyer, who were a couple for 44 years, were married in Canada in 2007, and were considered married by their home state of New York. “This law violated the fundamental American principle of fairness that we all cherish,” said Windsor. “I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”
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. Windsor’s lawsuit was filed by the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, the American Civil Liberties Union and the New York Civil Liberties Union