New York Court Undercuts DOMA

A divided federal appeals court in Manhattan struck down the Defense of Marriage Act Thursday as unconstitutional, joining an appeals court in Boston in rejecting the law that defines marriage as between a man and a woman. The Supreme Court is expected to take up the case in the next year.

The 2nd U.S. Circuit Court of Appeals issued its 2-to-1 ruling only weeks after hearing arguments on a lower court judge's findings that the 1996 law was unconstitutional.

The majority opinion written by Judge Dennis Jacobs rejected a section of the law that says "marriage" only means a legal union between one man and one woman as husband and wife and that the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. A federal appeals court in Boston earlier this year also found it unconstitutional.

The issue is expected to be decided by the Supreme Court. The decision came less than a month after the court heard arguments on Sept. 27.

Lawyer Paul Clement, who had argued in support of the law on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, was traveling and did not immediately return a message for comment.

In striking down the law, the Jacobs wrote that the law's "classification of same-sex spouses was not substantially related to an important government interest" and thus violated the equal protection clause of the Constitution.

He said the law was written so broadly that it touches more than a thousand federal laws. He said "homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public."

There is no mention of same sex marriage rights in the Constitution, but activist judges can read such rights into other areas of the Constitution if they want to. Liberals judges believe the old laws can't wait to be changed by the voters and politicians, so they often reinterpret them to expand new rights. It will be up to the Supreme Court to reverse new interpretations of the law (if they stick to the original intent). 

Judge Chester Straub dissented, saying that if the government was to change its understanding of marriage, "I believe it is for the American people to do so."

"Courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate," he said.

The ruling came in a case brought by Edith Windsor. She sued the government in November 2010 because she was told to pay $363,053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.

The law, which denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognize such marriages, was passed by Congress and signed by President Bill Clinton after it appeared in 1993 that Hawaii might legalize gay marriage. Since then, many states have banned gay marriage but several have approved it, including Massachusetts and New York. See Chick's THE GAY BLADE.