Yesterday, in Windsor v. United States, Judge Barbara S. Jones of the Southern District of New York joined the herd of independent minds rushing to declare unconstitutional section 3 of the Defense of Marriage Act, the definition of marriage for purposes of provisions of federal law. Without even bothering to hear argument on the matter, Judge Jones ruled that section 3 could not operate to bar a woman from claiming the marital deduction from the federal estate tax on her deceased same-sex spouse’s estate.
Judge Jones purported to apply the same supposed “intensified scrutiny” version of rational-basis review that the First Circuit espoused in its badly confused anti-DOMA ruling last week. But the utterly makeshift nature of Jones’s reasoning is evident from the fact that she contradicts herself from one page to another:
In dismissing Congress’s interests in proceeding cautiously and in promoting the traditional understanding of marriage, Jones finds it convenient to state (correctly) that “DOMA does not affect the state laws that govern marriage.” (Slip op. at 19.)
But just a few pages later, in disparaging Congress’s interest in ensuring a uniform standard of eligibility for federal benefits, Jones reverses course and declares (incorrectly—see point 3.b here) that section 3 “intrude[s] upon the states’ business of regulating domestic relations” and “skirts important principles of federalism.” (Slip op. at 23.)
(For anyone who wants to understand how section 3 of DOMA easily satisfies rational-basis review, I’d recommend reading the House of Representatives brief filed earlier this week in the Ninth Circuit by Paul Clement and his team.)