Yet another defeat for the Defense of Marriage Act


A small reminder of political opportunism selling out civil rights

The United States Court of Appeals for the Second Circuit on Thursday became the second federal appellate court in the nation to rule that the Defense of Marriage Act violates equal protection by barring same-sex couples legally married under state law from receiving the federal benefits available to heterosexual couples.

Any sensible reading of the Constitution and basic fairness demand a repudiation of this discriminatory law. So far, seven federal courts, including district courts, have reached the same conclusion about this improper denial of benefits. The next stop should be the Supreme Court.

The 2-to-1 ruling on Thursday came in the case of Edith Windsor, who married her partner of more than 40 years, Thea Spyer, in Canada in 2007. Their marriage was recognized by New York State. Yet, when Mrs. Spyer died in 2009, Mrs. Windsor, now 83, was prevented by the act from claiming an exemption from the federal estate tax available for surviving spouses, and was required to pay $363,053 in estate taxes.

Judge Dennis Jacobs, a George H.W. Bush appointee who wrote the majority opinion, said the law’s defenders — namely Republicans in Congress who took up the cause after the Obama administration decided in 2011 not to defend the law — did not offer any good reason for treating married same-sex couples differently from their heterosexual counterparts…

The new ruling also marked a legal breakthrough, one sought by the Justice Department. It is the first federal appeals court ruling to recognize that discrimination against gay men and lesbians — like discrimination based on gender or directed against children born out of wedlock — must be subject to “heightened scrutiny.” This standard requires government to have an “exceptionally good” reason to justify the different treatment. (Racial discrimination is subject to an even more skeptical review.)…

The Supreme Court should dismiss this law out of hand. If the self-titled strict constructionists have any loyalty to principles enshrined in the US Constitution this will not be a problem. Unfortunately, like most ideologues, they cannot be trusted to rule on behalf of reason and trust in democratic law.

Sound reasoning, a defense of open democracy means nothing, of course, to bigots. Opportunism is as consistent with American legal proceedings as it is within the chambers of Congress.

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