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Constitutional Law

2nd Circuit Rules for Surviving Gay Spouse, Says DOMA Violates Equal Protection Clause

Posted Oct 18, 2012 11:27 AM CDT
By Debra Cassens Weiss

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A New York-based appeals court has ruled on behalf of a lesbian seeking an estate tax deduction after the death of her spouse in a constitutional challenge to the Defense of Marriage Act.

The 2-1 opinion (PDF) by the 2nd U.S. Circuit Court of Appeals struck down a section of DOMA that defines marriage as a union only between one man and one woman for purposes of federal laws and regulations. The appeals court found a violation of the equal protection clause.

The court ruled on behalf of Edith Windsor of New York, who was assessed more than $363,000 in federal estate taxes because the federal government did not recognize her Canadian marriage.

The 2nd Circuit used intermediate scrutiny to assess the law. According to an ACLU press release, the decision is the first by a federal appeals court to use heightened scrutiny in assessing government discrimination against gays.

“Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition,” the court said in an opinion by Chief Judge Dennis Jacobs. “But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.”

New York is among six states that have legalized same-sex marriage, Reuters reports in its coverage of the ruling. Above the Law describes Jacobs as "a prominent conservative jurist."

"Will Windsor become the vehicle for Supreme Court review of the Defense of Marriage Act?" Above the Law asks. "Considering that SCOTUS has not yet granted any of the DOMA petitions, and considering that the only other circuit court to rule on the case—the 1st Circuit—involves a potential recusal (stemming from then-Solicitor General Elena Kagan’s involvement in the litigation), Windsor seems like a good case to grant."

Prior coverage:

ABA Journal: "Marriage Proposal: Court May Weigh Levels of Scrutiny for Same-Sex Couples"

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