In a detailed analysis, Lyle Denniston writes that yesterday’s 2-1 ruling by a US federal appeals court (the Second Circuit Court of New York) that the Defense of Marriage Act is unconstitutional is a major advance for equal rights.
For the first time in history, a federal appeals court on Thursday gave gays and lesbians a broad new form of constitutional protection against discrimination, and extended that protection to their rights when they get married under state law.
The scope of the ruling Thursday was probably more important than the final outcome — a ruling that the 1996 federal Defense of Marriage Act is unconstitutional because it denies legally married same-sex couples the benefits and opportunities under federal law that are fully available to opposite-sex married couples. In fact, the Circuit Court became the tenth federal court to strike down DOMA’s Section 3, in an unbroken recent string.
In the recent string of defeats for the DOMA benefits restriction, only one other federal appeals court had ruled on its constitutionality — the First Circuit Court, based in Boston. But that Court had explicitly refused to go as far as the Second Circuit majority did in the case of the New York City woman, Edith Windsor.In technical legal terms, what the Second Circuit decision did was to declare that gays and lesbians have become victims of continuing discrimination, and their sexual identities makes them a distinctive class, and, as such, any laws that would discriminate against them must be judged by “heightened scrutiny.”
It seems almost certain that that the US Supreme Court will take up this whole issue in its current term, either with a single such case or lumping several together.