Bench Memos

NRO’s home for judicial news and analysis.

Second Circuit’s Highly Suspect Invalidation of DOMA


A divided panel of the Second Circuit ruled today (in Windsor v. United States) that section 3 of the federal Defense of Marriage Act, which defines “marriage” for purposes of provisions of federal law as “only a legal union between one man and one woman as husband and wife,” “violates equal protection.”

The majority opinion was authored, alas, by Second Circuit chief judge Dennis Jacobs, a Bush 41 appointee who has generally been regarded as a conservative. Jacobs was joined by Obama appointee Christopher Droney. In a second departure from type (at least as determined by appointing president), senior circuit judge Chester Straub, a Clinton appointee, wrote a lengthy and vigorous dissent.

The essence of Jacobs’s ruling is that (1) classifications based on homosexuality should be subject to heightened scrutiny because homosexuals constitute a “quasi-suspect” class (pp. 24-34); (2) under this heightened scrutiny, a classification must be “substantially related to an “important government interest”—a standard that requires an “exceedingly persuasive” explanation (pp. 34-35); and (3) section 3 of DOMA can’t survive that scrutiny (pp. 35-43).

Some observations and criticisms:

1. Jacobs maintains that the federal interest in uniform eligibility for federal benefits is “suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws” (p. 36). He labels section 3 of DOMA “an unprecedented breach of longstanding deference to federalism” (p. 38).

Jacobs’s analysis of the supposed federalism interests at stake is badly confused. The definition of marriage for purposes of provisions of federal law is inherently a federal matter. As Jacobs elsewhere (p. 41) acknowledges, section 3 of DOMA doesn’t affect each state’s ability to determine whether same-sex couples can marry under state law.

Properly understood, federalism leaves state matters to the states and national matters to the national government. The only genuine interest of federalism at stake in this case is the ability of Congress to determine what marriage is for purposes of provisions of federal law. Far from respecting federalism, Jacobs unwittingly tramples it.

As Straub points out in his dissent, Congress decided to codify in section 3 of DOMA “what had always been implicit in federal law”—the opposite-sex nature of marriage. Contrary to what Jacobs supposes, the fact that the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law can’t possibly mean that constitutional considerations of federalism render section 3 suspect.

2. Jacobs breezily concludes that section 3 of DOMA doesn’t advance the goal of encouraging responsible procreation (pp. 41-43). But his blinkered focus on short-term “incentives for heterosexual couples” (incentives that he says DOMA doesn’t affect) ignores the broader long-term reality: The traditional male-female nature of marriage reflects the elementary biological reality that only heterosexual intercourse naturally generates children. The institution of marriage exists to maximize the prospect that children will be born and raised in stable and enduring families by the fathers and mothers responsible for their existence. Redefining marriage to include same-sex couples would permanently reorient the institution of marriage away from this central mission of responsible procreation. Conversely, by maintaining the traditional definition of marriage for purposes of provisions of federal law, section 3 of DOMA helps to promote that mission.

3. Jacobs contends that his analysis of section 3 of DOMA “is distinct from the analysis necessary to determine whether the marital classification of a state would survive [heightened] scrutiny” (p. 19). But there is no reason to believe that this is true. In particular, his faulty reasoning in support of his conclusion that DOMA doesn’t advance the goal of encouraging responsible procreation—the central purpose of marriage—would apply equally to state laws.

Further, while Jacobs’s confusion over federalism leads him to think that federalism interests cut against section 3, no one should imagine that a sound understanding of state authority would provide meaningful protection against the ever-malleable standard of “heightened scrutiny” of “quasi-suspect classes.” Indeed, it’s worth highlighting the shell game that proponents of judicial invention of a constitutional right to same-sex marriage are playing: When they’re attacking section 3 of DOMA, they invoke confused notions of federalism. But when, as in the Prop 8 case, they’re attacking traditional marriage laws in the states, suddenly the federal Constitution trumps state authority.

4. Jacobs can’t even conceal his eagerness to impose heightened review. “Fortunately,” he writes, “no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case” (pp. 20-23). Hmmm, why “Fortunately”?

In determining that “homosexuals constitute a quasi-suspect class,” Jacobs races through a one-sided analysis of the (admittedly amorphous) factors said to bear on that question.

Homosexuals, he tells us, “are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages.” (P. 25.) I have no idea what this means. The terms “discernible” and “distinguishing” would seem to be near antonyms of “non-obvious.” Jacobs then restates this factor as the question “whether the characteristic of the class calls down discrimination when it is manifest” (p. 30). If I’m reading him right, he finds this test satisfied because “sexual preference is necessarily disclosed … when  a surviving spouse of a same-sex marriage seeks the benefit of the spousal deduction” from the federal estate tax (pp. 30-31). In other words, the distinguishing characteristic that supports heightened review of section 3 of DOMA is nothing more than the operation of section 3 itself. As circular reasoning goes, that’s high spin indeed.

Jacobs likewise determines that homosexuals “are a politically powerless minority” without the “strength to protect themselves from wrongful discrimination” (p. 32). But he offers no meaningful argument in support of this proposition. He concedes that it is “difficult to say whether homosexuals are ‘under-represented’ in positions of power without knowing their number relative to the heterosexual population,” but he then blithely refers to the “seemingly small number of acknowledged homosexuals” in positions of power (p. 33). “Seemingly small” compared to a number he concedes he doesn’t know? I doubt that there is any politician in America who genuinely regards homosexuals as politically powerless.

All together, Jacobs’s opinion is an embarrassingly bad performance from someone from whom much better would reasonably have been expected.


Sign up for free NRO e-mails today:

Subscribe to National Review