The latest court to get on the “DOMA is unconstitutional” bandwagon is a panel of the Second Circuit, which issued its opinion today in a challenge regarding a same-sex marriage issued in Canada that was not recognized for tax purposes in the United States. The opinion comes just three weeks after the court heard arguments in the case.
As has become typical, the majority opinion today offers a new, novel, legal theory. The trial courts ruling on DOMA have said it was self-evidently irrational to retain the definition of marriage as husband and wife in federal law. The first time a federal appeals court ruled, it introduced a new legal standard based on implications in Supreme Court cases that did not deal with marriage. In today’s decision, the erratic legal analysis continues — the Second Circuit says “sexual orientation” should be treated the same as sex classifications and get “heightened scrutiny.” This means that any law or policy that implicates orientation will require the government to show particularly important interests are being served by the challenged law. This is a break from the decisions of all the other circuit courts (and of the Supreme Court case) to have ruled on the issue.
The majority accepts that the reasons Congress had for enacting DOMA were rational, but argues that there was not a close enough fit between these purposes and the “discriminatory” impact of the law. In regards to the most pressing concern of Congress — preserving the link between marriage and children — the court today said DOMA had to have motivated opposite-sex couples to marry to advance this interest.
Here’s a key passage from the majority opinion: “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.”
There was also a great dissenting opinion that takes seriously (1) Congress’s reasons for passing DOMA, (2) Congress’s power to define terms used in federal law, and (3) the fact that the Supreme Court rejected the notion that same-sex marriage is constitutionally mandated in the early 1970s.
Here’s the key passage from the dissent: “Whether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process. 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. Courts should not entertain claims like those advanced here, as we can intervene in this robust debate only to cut it short.”