Oct 18 2012

DOMA ruled unconstitutional by CONSERVATIVE federal judge

A woman married to another woman owed almost $400,000 in estate taxes upon the death of her wife because DOMA prevents the federal recognition of her marriage, so she filed a case arguing that this was illegal discrimination.  This case was just reviewed in federal court by Chief Judge Dennis Jacobs, a super conservative judge.

Shockingly, not only did he (and the court) rule DOMA unconstitutional, his opinion includes language that states that LGBT should be treated with heightened scrutiny under the Constitution.  This basically means that the court recognizes that LGBT are a historically marginalized group who deserves special consideration when having laws directed at them.

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.

Not only is DOMA unconstitutional, but ALL attempts to discriminate against gay people have to pass heightened scrutiny — something that law has, somewhat shockingly, completely failed to establish.

The hope now is that SCOTUS will adopt the same reasoning.  They should because it is completely reasonable, but that doesn’t always mean anything.  If SCOTUS did accept this reasoning and adopt it, it would functionally mean that all discrimination on the basis of orientation would be illegal.

The opinion is here: http://www.scribd.com/doc/110431508/12-2335-447

This is a big deal, or at least could be. Fingers crossed.


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  1. 1
    Greg Laden

    For years, I’ve made the argument that conservatives should love gay marriage because it forces those dam gay people to be liable in the same way straight married people are for things like this, dammit! I would think that right wingers would not want Teh Gay to be getting away with stuff.

  2. 2
    Kaoru Negisa

    I would like to think that this is meaningful for the SCOTUS, but I have my worries. Especially since at least one Justice is bound by whatever makes his wife more money, and another’s approach to jurisprudence is “Whatever the fuck I feel like”. I hate describing Kennedy as the “swing vote,” because he really doesn’t swing left that often, but he very well may make the difference on this one.

    I like that this points out being in a same-sex marriage is a distinguishing characteristic, not something that can be denied since homosexuality isn’t as obvious as skin color.

  3. 3
    Rutee Katreya

    I hope this sticks, but fear it won’t. Still, yay!

  4. 4

    I have a dim view on the current SCOTUS but welcome the ruling. For today, I’ll be happy :).

  5. 5
    F [i'm not here, i'm gone]

    Wow, wow, wow! I’m fairly amazed whenever decent toi good rulings are made in various cases I read about, but this is amazing (and completely correct).


    D) the class remains a politically weakened minority.

    gives us an official notice against the supposed dominance of LBGT peoples, oppression of heterosexual people/religious nuts, and the claims of a Gay Agenda running the country. (Or not: The Gay Agenda must have gotten to him!)

  6. 6

    I made a simple substitution:

    “In this case, all four factors justify heightened scrutiny: A) nudists as a group have historically endured persecution and discrimination; B) nudity has no relation to aptitude or ability to contribute to society; C) nudists are a discernible group with non-obvious distinguishing characteristics; and D) the class remains a politically weakened minority.”

    I wonder if Chief Judge Dennis Jacobs would buy that.

    I would, but I know Scalia wouldn’t!

  7. 7
    Bruce Gorton


    When nudists aren’t allowed to marry… then you will still be a horrible person.

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