A Few Thoughts on the Second Circuit’s DOMA Decision

Dan82 · Oct 24, 2012

http://www.volokh.com/2012/10/19/a-few-thoughts-on-the-second-circuits-doma-decision/

This week a divided panel of the U.S. Court of Appeals for the Second Circuit held that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Section 3 is the portion of DOMA barring federal recognition of same-sex marriages, even where recognized under state law. In this case, Windsor v. United States, the question was whether a surviving spouse could claim a the spousal deduction on her federal taxes. Although her state of domicile recognized her marriage, under DOMA the federal government cannot. The opinion was written by Chief Judge Dennis Jacobs, joined by Judge Christopher Droney. Judge Chester Straub dissented. As others have noted, it’s interesting that the majority was written by a very well-respected Bush (41) nominee, while a Clinton nominee dissented. Dale and Ilya also commented on the decision below.

As someone who supports gay marriage but is unpersuaded by the argument that recognition of same-sex marriage is constitutionally required, I found Judge Jacobs’ opinion was quite strong. It is quite narrow in that it focuses on the alleged federal interest in an exclusively federal definition of marriage, noting that while such interests are insufficient to justify Section 3 of DOMA, it is not necessarily also the case that states lack sufficient interests to maintain the traditional definition of marriage as between one man and one woman...

http://www.volokh.com/2012/10/19/a-few-thoughts-on-the-second-circuits-doma-decision/
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Pret Allez · Oct 24, 2012

I think this is a good direction to move in. I mean, I don't like the holding, but I do think that it would be good to get it more in the case law that intermediate scrutiny should be the standard applied to cases like these. We're never going to win on rational basis, and various courts insistence on applying rational basis is the whole problem, because it accepts as a given that we do not represent a disempowered, vulnerable class.

A Few Thoughts on the Second Circuit’s DOMA Decision

Dan82
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A Few Thoughts on the Second Circuit’s DOMA Decision

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