Skip to contentNational Women's Law Center

Second Circuit Rules DOMA Unconstitutional

This Thursday, the Second Circuit ruled 2-1 that Section 3 of the Defense of Marriage Act (DOMA) violates the Equal Protection Clause of the U.S. Constitution. DOMA defines marriage under federal law as between one man and one woman. The Second Circuit’s ruling continues a recent string of decisions striking down Section 3 of DOMA, which began with the Northern District of California’s ruling in Golinski v. OPM in February and continued with the First Circuit’s ruling in Gill v. OPM

In Windsor v. United States, the Second Circuit concluded that laws discriminating against gays and lesbians were subject to “heightened” or “intermediate scrutiny” under the Constitution. According to the Court, heighted scrutiny applies based on the history of discrimination against gays and lesbians and their relative political disempowerment. Heightened scrutiny is the same constitutional standard of review that applies to gender and the Second Circuit here used gender discrimination as an analogy to the discrimination faced by gays and lesbians. Laws subject to heightened scrutiny are presumed to be unconstitutional, unless the challenged legislation is shown to be at least substantially related to an important purpose. In other words, the justification for the law must be “exceedingly persuasive.”

The Second Circuit found that the DOMA failed to meet heightened scrutiny because the purposes given for the law — uniformity at the federal level on marriage, conservation of federal resources, preserving a traditional definition of marriage, and “responsible” child-rearing — were not promoted by the law.

With regard to federal uniformity, the Second Circuit noted that Congress has historically let states determine family law, which varies widely from place to place. According to the Court, DOMA created more “discord” than uniformity. The Second Circuit found that DOMA is not substantially related to fiscal matters because the law touches on thousands other non-financial laws. Finally, they found that the law did not promote a traditional understanding of marriage because states were free to change their own definitions of marriage. In reaching its decision, the Second Circuit rejected arguments from the House of Representatives, which hired counsel after the DOJ declined to defend the Act.

The dissent, authored by Judge Straub, said that the Supreme Court had never created a “quasi-suspect classification” for gays and lesbians, and Judge Straub said he would not have done so here based on existing Supreme Court precedent.

This new ruling, in addition to the Ninth Circuit’s decision in Perry v. Brown that struck down Proposition 8, adds to the growing consensus that same sex marriage restrictions violate the federal constitution. The Supreme Court may address these issues in this coming term as it has already been asked to review both other DOMA decisions and was also asked to review the Ninth Circuit’s decision in Perry.

Stay tuned for updates!



Billy Bob, small, non complex words are uusllay all you can muster at best. We don't expect much from you, so don't sweat the small stuff. I assure you, we can keep up with your spin, and when we pick ourselves off the floor from laughing our proverbial butts off, we respond.When one sets a budget or makes a deficit projection, one estimates revenues and estimates expenses. The current US budgets and deficit projections RELY ON THE ASSUMPTION that tax rates will increase to pre-Bush levels in 2011; likewise, the revenue estimates are based on those higher tax rates.Well, you know what they say about the opening three letters of the words, ASSume . Because of Senate debate rules and any legislation that is deemed to affect the deficit, all measures are temporary.. and no more than 10 years. If Congress did nothing, they would return to previous levels. I am not a supporter of many things permanent because different economic times require different solutions. But doing nothing , and allowing sunsetting is not necessarily the original intent, nor the mandate. In other words, the choices are not just allowing it to sunset, or extending it as it is. Therefore the assumption made to use figures is as imaginary as your purported understanding of economic budgeting. Any CBO figures (which the ones you are using are old, and do not address the entire framework as presented) should be based on the proposal. And no bill should be passed without equal cuts in spending, adjusting it to projected incomes based on the new bill. You see, you all like to look at the lost revenue, add spending without cutting, and then pronounce it evil. I see it a different way. Look at the anticipated revenue, then adjust the spending waste to adapt to the revenue stream.Any deficit that is a result of leaving taxes the same, and compounded by Dems demands for further spending and revenue loss , as you like to call it, is a result NOT of lack of government theft. It's a lack of government spending cuts. Period. You are continually viewing the wrong side of the coin. Income can only be what the market conditions can bear. You use that, and adjust the spending DOWN, as is logical.*Neither* party has done this. The GOP caved by allowing the Dems to pile on to spending, and not insisting on some expense cuts. As far I'm concerned, I'd like another election now, and remove a few more.The Bush era CBO report that I have linked to before, and the Bush budget analysis I linked to before, showed that you do not get increased revenues when you lower tax rates; you don’t even get the same revenue stream; you get lower revenues. Again, the US Treasury study in 2006 shows you to be the fiscal fool you remain. I know even pictures that show increasing revenue in the wake of tax policies that center around cuts is tough for you to grasp, so I shan't bother humoring your continued lack of comprehension. As many here say, you just can't fix stupid. But again, we're not talking about cutting the 2001 taxes, but leaving them status quo. If you want to talk tax cuts, then address what your precious Dems added to the mix. GOP was lobbying for status quo. Dems wanted to pile on with tax cuts, while ignoring their years railing about tax cuts. Laughable Mata, when you write sentences that read “the government is allowed to count tax money they are not currently stealing from the breadwinners as a ‘loss’”, it is clear that you simply don’t agree with, or understand, how budget estimates are done. You think they should be done some other way where, I guess, we do not count as “a loss” revenues that disappear even as the expenses don’t disappear. Well duh, Billy Bob. It's the part about the expenses that don't disappear that is the problem.Only that is how budgeting works in the real world: analogy — if a company is discontinuing a product, they do not make future revenue projections relying on revenues from a product they will no longer sell. Likewise, when you cut tax rates, you WILL, due to simple math, take in less money.Gee you come so close, then veer away. LOL A company is wise enough to adjust their expenses down for revenue they don't anticipate. And Congress doesn't do this, why? And again, we are not cutting tax rates except with the ironically enough added Dem demands to cut taxes for payroll, etc. (ain't that a hoot . another lib/prog forked tongue selling point LOL) We are leaving them status quo. The bill should be simple we leave tax rates the same, or we don't. No piling on with more spending. If we don't, Obama/Pelosi/Reid will continue to extend any slow recovery because the taxpayer market cannot bear a tax increase.You CANNOT BUDGET based on an impossible assumption, that cutting tax rates will result in the same or more revenue. It makes no sense, it is not mathematically sound, and it just does not work.First of all, you cannot predict, with any certainty (a phrase your legal butt should be familiar with), that revenue will not increase because you cannot predict either business growth and increased revenue, and the consumer spending habits. The US Treasury study shows it does increase. But I would base any revenue figures on a GDP projected increase, with a minus fudge factor built in for safety. In other words, you don't spend more than you anticipate bringing in.THAT IS WHAT GOT US INTO THIS MESS IN THE FIRST PLACE: con magical thinking that if you cut rates from 25% to 20%, more money will magically appear!Money magically appears when you spend less than you take in. This really is a tough concept for you, isn't it?Why don't you talk about the $250 correction, that's $463 billion tax increase on the Joe Blow citizen that you lib/progs really want to do by sunsetting the 2001 tax policies, Billy Bob. Too painful a reality? You think you want to stick it to the wealthiest of Americans , when the bulk of the cash you want to steal from the taxpayers are those you supposedly represent. Hypocritical, is a kind way of putting it. Shafting and lying is probably closer to the truth.Reply

Post new comment