A strongly Conservative federal appeals court in Manhattan has struck down the Defense of Marriage Act declaring it unconstitutional. The 2nd US Circuit Court of Appeals issued their ruling on Thursday upholding a lower court ruling that the 1996 law was unconstitutional and the three-judge panel stated that the law violates the equal protection clause of the Constitution.
It has been noted that Chief Judge Dennis Jacobs is heavily Conservative, and that he authored the majority opinion. He also called for stricter skeptical standards when it comes to LGBT rights, a conclusion that could result in the overturning of all anti-LGBT discrimination. He wrote:
[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
Only one of the three judges dissented, Judge Chester Straub, a Clinton appointee.
To date, the House Republicans have spent $1.5 million on defending DOMA unsuccessfully.