Second Circuit Strikes Down the Federal Defense of Marriage Act; Legal Aid Participates as Amicus on Behalf of Clients

Yesterday, the United States Court of Appeals for the Second Circuit affirmed a lower court decision declaring the Defense of Marriage Act (DOMA) violates equal protection and is therefore unconstitutional. Windsor v United States and Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), (12-2335-cv (L)).

Before the Second Circuit, The Legal Aid Society participated as amicus on behalf of clients who are adversely affected by DOMA. "This ruling is an important step forward towards ensuring that our clients receive equal protection under the law," said Steven Banks, the Society's Attorney-in-Chief.

The New York case focused on Section 3 of DOMA which states, "in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

In a 2 to 1 decision, the Second Circuit was the first federal circuit to hold that heightened scrutiny applies when discrimination based on sexual orientation is at issue, a position supported by The Legal Aid Society in an amicus brief.

In his majority opinion, Chief Judge Dennis Jacobs found the arguments put forth by BLAG, the party now defending DOMA since the United States Attorney General declined to defend the law and supported its overturning, did not withstand intermediate scrutiny in that DOMA was not substantially related to an important government interest. Judge Jacobs concluded that "[o]ur straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. 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. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door."