Defense of Marriage Act Gets Even More Indefensible

22 Oct

Chief Judge Jacobs insists on Heightened Scrutiny

This week yet another court rejected the horrific “Defense” of Marriage Act, also known as DOMA. Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit ruled Thursday that Section 3 of DOMA is unconstitutional. That’s the section that forbids the Federal government from providing benefits to same-sex couples who are legally married in their state of residence.

There are a couple of remarkable things about this ruling. The first is Chief Judge Jacobs himself. He is an extremely conservative judge, first appointed to the federal bench by George H.W. Bush, not known for his prowess in appointing judges, a la Clarence Thomas. His rulings over the years are aggressively pro-business and have little regard for marginalized populations. His opinions are often in the mode of people like Antonin Scalia.

Even more remarkable, Jacobs is the second judge in a few weeks not just to strike down DOMA, but to do so by invoking “heightened scrutiny” for LGBT Americans. This is a particularly strong ruling, requiring that laws negatively impacting the gay community must pass several tests relating to government interests before even being considered constitutional. It’s the same level of scrutiny required when looking at laws that impact people based on their race. In all four factors in Windsor v. United States, Jacobs finds that the matter requires 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.

This is the fourth case this year to strike down one or more parts of DOMA. Three have been decided by fairly conservative justices, using rationale that relies on states rights and other principles tied to conservative jurisprudence. All four are bound for appeals to the Supreme Court. Given the way things have been set up, there’s a reasonable chance that at least one of the conservative justices would uphold the ruling(s), gutting or overturning DOMA. It’s not over ’til the fat justice sings, but something significant is bound to happen during this SCOTUS year.

As the country grows increasingly supportive of marriage equality, the Republican tactics of marginalization look more vicious and archaic than ever. John Boehner’s House has spent nearly $1.5 MILLION in taxpayer funds to defend DOMA. He’s lost every time and has just about expended the whole amount budgeted for bigotry. Will he try to authorize more to argue his case before the Supreme Court?  To add to further to the tragedy that is Boehner, we have Presidential candidate Romney running on a platform to strip people of civil rights, specifically women, the LGBT community, and anyone that might fall into the sad 47%.

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