In a detailed analysis, Lyle Denniston writes that yesterday’s 2-1 ruling by a US federal appeals court (the Second Circuit Court of New York) that the Defense of Marriage Act is unconstitutional is a major advance for equal rights.
For the first time in history, a federal appeals court on Thursday gave gays and lesbians a broad new form of constitutional protection against discrimination, and extended that protection to their rights when they get married under state law.
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The scope of the ruling Thursday was probably more important than the final outcome — a ruling that the 1996 federal Defense of Marriage Act is unconstitutional because it denies legally married same-sex couples the benefits and opportunities under federal law that are fully available to opposite-sex married couples. In fact, the Circuit Court became the tenth federal court to strike down DOMA’s Section 3, in an unbroken recent string.
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In the recent string of defeats for the DOMA benefits restriction, only one other federal appeals court had ruled on its constitutionality — the First Circuit Court, based in Boston. But that Court had explicitly refused to go as far as the Second Circuit majority did in the case of the New York City woman, Edith Windsor.In technical legal terms, what the Second Circuit decision did was to declare that gays and lesbians have become victims of continuing discrimination, and their sexual identities makes them a distinctive class, and, as such, any laws that would discriminate against them must be judged by “heightened scrutiny.”
It seems almost certain that that the US Supreme Court will take up this whole issue in its current term, either with a single such case or lumping several together.
Spelling police here. The man’s name is Lyle Denniston.
Thanks! Corrected.
Mano wrote:
There’s a good chance of this, but you can bet that there will be some real strategic thinking going on in Supreme Court chambers in the weeks and months to come. It only takes 4 votes to grant certiorari, and there are almost certainly 4 votes to reverse the Second Circuit: Chief Justice Roberts, and Justices Scalia, Thomas, and Alito. Those 4 would probably like to grant certiorari, but will be reluctant to do so unless they’re confident they’ve got a 5th vote. Who would that be? Not Justices Ginsburg, Breyer, Sotomayor, or Kagan; they’re likely votes to affirm. As is so often the case in these 4 to 4 splits, Justice Kennedy is the swing vote. So the Four Conservative Horsemen have to weigh the likelihood that they can get Justice Kennedy on their side. From their perspective, if they vote to grant certiorari and Justice Kennedy votes to affirm, it’s a disaster.
Here’s their problem: Justice Kennedy has, to this point, been very supportive of homosexual rights. He wrote the opinions for the Court in Romer and Lawrence, two opinions that struck down laws discriminating against homosexuals. He did so using reasoning that is quite different from the reasons used by the Second Circuit in yesterday’s opinion, but that’s a legal fine point that need not concern us here. If past is prologue, Justice Kennedy might well be inclined to affirm the Second Circuit decision. This would kill DOMA,and would be a big step forward for equality generally, and same-sex marriage specifically.
Of course, with the Supreme Court, there are no guarantees; predicting what the Court might do is, more often than not, a fool’s errand. Justice Kennedy, libertarian though he is on homosexual rights, might not be willing to take this step just yet. All things considered, though, I think the odds that he votes to affirm would be better than 50-50. So the Four Conservative Horsemen might not want to vote to grant certiorari. The question then becomes: does the Court’s liberal bloc vote to grant certiorari? The plot thickens… .