Windy City Media Group Frontpage News

THE VOICE OF CHICAGO'S GAY, LESBIAN, BI, TRANS AND QUEER COMMUNITY SINCE 1985

home search facebook twitter join
Gay News Sponsor Windy City Times 2021-09-01
DOWNLOAD ISSUE
Donate

Sponsor
Sponsor

  WINDY CITY TIMES

Big surprises in second circuit ruling on DOMA
by Lisa Keen, Keen News Service
2012-10-18

This article shared 3991 times since Thu Oct 18, 2012
facebook twitter google +1 reddit email


There have been enough federal court rulings declaring the Defense of Marriage Act unconstitutional that the Thursday (October 18) ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise, in and of itself. But the panel's related ruling —that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

In Windsor v. U.S., a three-judge panel vote 2 to 1 that Section 3 of DOMA —which prohibits federal recognition of marriage licenses issued to same-sex couples—is unconstitutional. In doing so, it said that "homosexuals as a group have historically endured persecution and discrimination," that "homosexuality has no relation to aptitude or ability to contribute to society," that "homosexuals are a discernible group," and that gay people, as a class, "remains a politically weakened minority."

For those reasons, said the court, laws treating people differently because they are gay should be given a heightened level of scrutiny by the courts.

"This is the first federal appellate court ruling that heightened scrutiny — a presumption of unconstitutionality — applies in reviewing sexual orientation discrimination; that's definitely a big deal," said Evan Wolfson, head of the national Freedom to Marry group and a long-time legal activist for marriage equality.

"This is huge," agreed Jon Davidson, legal director for Lambda Legal. "When any form of heightened scrutiny applies, it means that courts no longer presume that the law or government conduct that is challenged is constitutional. Instead, they look with suspicion at the government's differential treatment of the minority group.

The decision, and the heightened review ruling, apply only to Second Circuit states for now, but Wolfson said it was an especially impressive find led by Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush. Joining Jacobs in the decision was the appeals court's newest member, Obama appointee Christopher Droney.

Dissenting from the majority was 75-year-old Clinton appointee Chester Straub.

Wolfson noted that the Windsor decision marks the tenth federal ruling that DOMA is unconstitutional.

"No matter how slice it, it's time for the Supreme Court to swiftly strike down this discriminatory law and get the federal government back to treating married couples, gay or non-gay, as what they are: married," said Wolfson.

James Esseks, director of the ACLU's LGBT Project, represented Edith Windsor in the lawsuit. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not allowed to take the routine marital estate tax deduction. Instead, she paid more than $360,000 in taxes on the estate she shared with her spouse.

A legal team hired by the Republican-controlled Bipartisan Legal Advisory Group (BLAG) in the U.S. House argued that, at the time of Spyer's death (in 2009), the state's highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution "does not compel recognition of marriages between members of the same sex."

The Solicitor General appealed the case to the U.S. Supreme Court even before the Second Circuit issued its decision. And constitutional scholar Nan Hunter indicated in her blog hunterforjustice.com that the high court may be inclined to hear Windsor because all nine justices would be able to sit in on the case. Hunter speculated that Justice Elena Kagan would "likely" recuse herself from the Massachusetts cases because she "acknowledged at least limited involvement in discussions of the Gill litigation" while she was Solicitor General.

In its ruling in Windsor, the Second Circuit noted that, "For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death.

In upholding the district court decision that DOMA violates the equal protection clause of the constitution, the majority opinion rejected an argument by BLAG that the U.S. Supreme Court's summary dismissal of an appeal of a 1971 case from Minnesota of a gay couple whose request for a marriage license had been rejected.

"When Baker was decided in 1971, "intermediate scrutiny" was not yet in the Court's vernacular," wrote Jacobs. Citing the Supreme Court's 1996 ruling in Romer v. Evans, he noted, "The Court had not yet ruled that "a classification of [homosexuals] undertaken for its own sake" actually lacked a rational basis." And, referring to the Supreme Court's 2003 ruling striking laws prohibiting same-sex sexual relations, he noted, "And, in 1971, the government could lawfully "demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime."

The majority said DOMA could not survive an intermediate level of scrutiny. BLAG's claim that DOMA preserves some uniformity in the definition of marriage, it said, failed because "DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity…." And because DOMA affects more than 1,000 federal benefits, it said, BLAG could not persuasively argue that it is substantially related to fiscal matters. The government also failed to prove that DOMA was a means of preserving a traditional understanding of marriage and "responsible childrearing."

The Supreme Court has not yet indicated when it will announce whether it will hear any of the DOMA cases pending before it. Many court observers have speculated the justices are holding off on their decision until after the November 6 election.

© 2012 by Keen News Service. All rights reserved.


This article shared 3991 times since Thu Oct 18, 2012
facebook twitter google +1 reddit email

  ARTICLES YOU MIGHT LIKE

Gay News

WORLD Japan politics, video games, lesbian tennis player, Mr. Gay World 2021-10-10
- LGBTQ+-rights activists were hoping Japan would finally allow same-sex marriage if Taro Kono, who has publicly supported same-sex marriage, became the country's next prime minister—but their hopes were dashed. Japan's ...


Gay News

"I can't be silent": Michael O'Connor discusses his longtime activism 2021-10-04
By Kayleigh Padar - Years ago, longtime activist Michael O'Connor heard that some Black legislators in Illinois didn't want to support the Marriage Equality Act because they didn't believe Black people would benefit from same-sex marriage. He decided to prove ...


Gay News

Liz Cheney: 'I was wrong' to oppose same-sex marriage 2021-09-27
- U.S. Rep. Liz Cheney said—in a segment of the CBS show 60 Minutes that aired Sept. 26—she was "wrong" to oppose same-sex marriage when her objection to it caused a public split with her family, including ...


Gay News

Nearly two-thirds of Swiss residents vote for marriage equality 2021-09-26
- Almost two-thirds of Switzerland's voters backed the government's plan to introduce same-sex marriage in a referendum held Sept. 26, with campaigners calling it a historic day for gay rights in Switzerland, Yahoo! News reported, citing AFP. ...


Gay News

NATIONAL Danica Roem, 'Don't Ask, Don't Tell,' abortion appeal, Lambda Legal 2021-09-26
- Transgender Virginia legislator Danica Roem is facing a conservative marriage-equality opponent and former Trump administration member in her re-election race this November, Yahoo! News noted. Roem, a Democrat, was elected to the House of Delegates in ...


Gay News

WORLD Marches, world leaders, Swiss marriage, soccer match 2021-09-26
- Thousands of people including soldiers and diplomats marched peacefully through the Ukrainian capital of Kyiv in an annual Pride parade despite some opposition to an event called off last year because of the coronavirus pandemic, Reuters ...


Gay News

[UPDATE] Lisle school offers job to lacrosse coach in same-sex marriage 2021-09-21
- The administration at Lisle’s Benet Academy, a west suburban Catholic school, has reversed course and offered a job to a woman in a same-sex marriage after initially rescinding the offer, The Chicago Tribune reported. ...


Gay News

Pope again refuses to bless same-sex marriages 2021-09-18
- Pope Francis told reporters recently on a return flight from Hungary that the Catholic Church is unable to bless same-sex marriages because marriage is a divine sacrament between a man and a woman, per The Advocate. ...


Gay News

Polis marriage marks first same-sex wedding of sitting governor 2021-09-17
- On Sept. 15, Colorado Democratic Gov. Jared Polis wed longtime partner Marlon Reis—marking the first same-sex marriage of a sitting U.S. governor, NPR reported. Polis keeps making history. In 2018, Polis became the first openly gay ...


Gay News

LGBTQ advocates celebrate two Illinois marriage certificate modernization bills 2021-07-27
--From a press release - Trans and non-binary people who were married in Illinois will now be able to obtain marriage certificates that reflect their authentic selves thanks to legislation signed today by Governor JB Pritzker, according to Equality Illinois and ...


Gay News

WORLD Marriage in Chile, Polish website, Toronto news, 'Reclaim Pride' march 2021-07-25
- On July 21, Chile's Senate approved an equal-marriage bill, DW.com reported. The regulations were presented during the second government of the socialist Michelle Bachelet (2014-2018) and last June 1, during ...


Gay News

LGBTQ advocates celebrate passage of Illinois marriage certificate name change legislation 2021-05-28
--From a press release - LGBTQ advocates are celebrating passage of state legislation that will provide certainty for individuals requesting that their Illinois marriage certificates reflect a legal name change. HB 2590 is an initiative of Equality Illinois and Chicago House ...


Gay News

LGBT-inclusive marriage-certificate act passes state General Assembly 2021-05-21
--From a press release - May 21. 2021 - In an effort to modernize marriage certificates in Illinois, state Sen. Sara Feigenholtz and state Rep. Ann Williams helped pass The Marriage Certificate Modernization Act through the Illinois General Assembly. The legislation ...


Gay News

Starting May 3, ceremonies in Cook County's downtown Marriage Court can be performed by Zoom 2021-04-30
- CHICAGO (April 30) — Marriage and civil union ceremonies at Cook County's downtown Marriage and Civil Union Court (Marriage Court) may be performed via Zoom videoconference, as well as in person, starting next week, according to ...


Gay News

Illinois Senate passes proposal removing gendered language from marriage certificates 2021-04-21
--From a press release - On April 21, on its third reading, the Illinois Senate passed (by a bipartisan vote of 44-13) a proposal that amends the Illinois Marriage and Dissolution of Marriage Act to allow the removal of gendered language ...


 



Copyright © 2021 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.

 
 

TRENDINGBREAKINGPHOTOS







Sponsor
Sponsor


 

Sponsor


Donate


About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Advanced Search     
Windy City Queercast      Queercast Archives     
Press  Releases      Join WCMG  Email List      Email Blast      Blogs     
Upcoming Events      Todays Events      Ongoing Events      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Privacy Policy     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.