Another Federal Court Of Appeals Strikes Down DOMA’s Section Three

Another loss in the Federal Courts for the Defense Of Marriage Act.

A second Federal Court of Appeals, this time out of the Second Circuit in a case originating in New York, has declared that Section Three of the Defense Of Marriage Act is unconstitutional because it violates the Equal Protection Clause:

A divided federal appeals court in Manhattan struck down the Defense of Marriage Act Thursday as unconstitutional, joining an appeals court in Boston in rejecting the law that defines marriage as between a man and a woman. The Supreme Court is expected to take up the case in the next year.

The 2nd U.S. Circuit Court of Appeals issued its 2-to-1 ruling only weeks after hearing arguments on a lower court judge’s findings that the 1996 law was unconstitutional.

The majority opinion written by Judge Dennis Jacobs rejected a section of the law that says “marriage” only means a legal union between one man and one woman as husband and wife and that the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. A federal appeals court in Boston earlier this year also found it unconstitutional.

The issue is expected to be decided by the Supreme Court. The decision came less than a month after the court heard arguments on Sept. 27.

Lawyer Paul Clement, who had argued in support of the law on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, was traveling and did not immediately return a message for comment.

James Esseks, an attorney for the American Civil Liberties Union, called the ruling “a watershed moment in the legal movement for lesbian and gay rights.”

“It’s fabulous news for same-sex couples in New York and other states,” he said.

Esseks said the 2nd Circuit went farther than the appeals court in Boston by saying that when the government discriminates against gay people, the courts will presume that the discrimination is unconstitutional.

In striking down the law, the Jacobs wrote that the law’s “classification of same-sex spouses was not substantially related to an important government interest” and thus violated the equal protection clause of the Constitution.

He said the law was written so broadly that it touches more than a thousand federal laws. He said “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

He rejected arguments that the definition of marriage was traditional.

“Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it,” he said.

Judge Chester Straub dissented, saying that if the government was to change its understanding of marriage, “I believe it is for the American people to do so.”

“Courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate,” he said.

It may not sound like it from the report but Judge Jacobs, the author of the majority opinion, was appointed by the first President Bush and is generally considered a judicial conservative, while Judge Esseks, the lone dissenter on the panel, was appointed by President Clinton. It goes to show you, I think, that you cannot always be sure where a judge is going to come down just based on what you think you know about their political leanings. In that same regard, Judge Vaughn Walker, who wrote the opinion striking down California’s Proposition 8, was a Republican appointed by President Reagan.

Perhaps the most important part of Judge Jacobs’ opinion is his finding that essentially states that any law that discriminates against gays and lesbians should be subjected to heightened scrutiny for purposes of evaluating it under the Equal Protection Clause:

[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny.The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. 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.

This is similar to the finding that Judge Walker made in his Proposition 8 ruling and, although it wasn’t adopted in whole by the Ninth Circuit in their own opinion striking down California’s law, it remains a profoundly important concept because it would essentially mean that any law that treats homosexuals differently — whether it’s marriage laws, or adoption laws, or any other such laws — would be presumed to be unconstitutional unless the government can provide a compelling reason why the law should stand. Since discrimination under the law on the basis of sexual orientation is seldom based on anything approaching rationality, that would make it next to impossible for any such laws to stand.

Ian Milhiser thinks this s a big deal:

 Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is thesame very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

The Volokh Conspiracy’s Ilya Somin, who tends to lean libertarian on legal matters, comments:

Obviously, both DOMA and state laws banning gay marriage do discriminate against gays and lesbians in the sense that homophobia is a major part of the motivation behind their enactment. Facially neutral laws that have the intended effect of disadvantaging a particular racial group or gender have often been invalidated by the courts. Perhaps facially neutral laws intended to disadvantage gays and lesbians should be treated the same way. But such rulings require the plaintiff to provide substantial evidence showing that the was enacted because of hostility towards the group in question. The Second Circuit did not conduct any analysis of the motives behind DOMA. And that analysis may not be easy, given that DOMA had very broad support when enacted in 1996, including from numerous liberal Democratic members of Congress who were probably not motivated by homophobia (though they may have been catering to the prejudices of some of their constituents). Democrats voted for the law by a 188-65 margin in the House of Representatives and 32-14 in the Senate, and President Bill Clinton also supported it. It’s likely that DOMA would not have been enacted in the absence of widespread homophobic prejudice. But it may not be an easy thing to prove in court. Yet that is the relevant legal standard if facially neutral laws that allegedly discriminate on the basis of sexual orientation are going to be treated the same way as facially neutral laws that are challenged on the grounds that they discriminate on the basis of race or sex. If the facially neutral law would not have been enacted without a discriminatory motive, then it will be invalidated unless it passes the same level of heightened scrutiny as a law that explicitly discriminates on the basis of race or sex.

By contrast, as I argued here, striking down DOMA and bans on gay marriage because they discriminate on the basis of sex is much easier. Since the sex discrimination is right there on the face of the statute, there is no need for an inquiry into motive.

This result would seem to virtually guarantee that the Supreme Court will be ruling on the constitutionality of Section 3  of DOMA, possibly before the the end of this year. There is already one case regarding the law waiting on a decision by the Justices as to whether or not certiorari will be granted. That case also involves a ruling striking down Section 3 under the Equal Protection Clause, although the reasoning was slightly different in that case. That ruling was handed down by the First Circuit Court of Appeals. There are also at least two other cases that have been decided at the District Court law, against the law as well, that are awaiting action by their respective Circuit Courts of Appeal. Additionally, it’s generally the case that matters involving a ruling on the constitutionality of a Federal statute are likely to be accepted for appeal by SCOTUS, especially when the decision below involved a finding that the law was unconstitutional. Given all of this, it’s entirely possible that we will see a ruling on the Defense of Marriage Act by the end of the Court’s current term. And here we thought that this current Term wasn’t going to be as interesting as the last one.

Here’s the decision:

Windsor v. United States et al

FILED UNDER: Gender Issues, Law and the Courts, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Alanmt says:

    The decision is fairly notable for its concise disposal of the current “best arguments” raised against governmental recogntion of same-sex marriage, although the heightened scrutiny classification is the sexiest part of the decision.

  2. Gromitt Gunn says:

    It seems like Ilya Somin is not fully considering the rapid degree of change in attitudes towards LGBTs across the political spectrum between the mid 90s and today – or the differences in ideological makeup of the Democrats of the time versus today – in constructing his argument.

    At the time that DOMA passed, anti-retrovirals were still being worked on, and HIV was still a gay disease and a death sentence in the minds of most Americans. I was out of the closet then and in my mid-20s, and it was such a different world to be gay in than the one we live in now. I really don’t think that should be all that difficult to prove should it become necessary.

  3. Tony W says:

    The standard any time civil rights are involved should be “compelling state interest,” and the burden upon those who would curtail individual freedoms.

    In this case DOMA fails both tests – the best argument I ever heard was essentially “we’ve always done it that way”.

    I am disgusted that it took 20 years to tear down both this travesty, and that of DADT.

  4. stonetools says:

    I see another 5-4 decision, with King Kennedy finishing the work he started in Lawrence v Texas.Roberts might actually join him, though.

  5. Delmar says:

    The Supreme Court should get the Federal government out of the holy matrimony business and turn the whole matter over to the states.
    Let the citizens decide.

  6. Al says:


    You could use a remedial lesson on liberty. I’d suggest starting here.

  7. ernieyeball says:

    The majority opinion written by Judge Dennis Jacobs…He said “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

    Does Delmar belong to the “majoritarian public” Judge Jacobs is concerened about in this opinion?
    Only Delmar knows…

  8. anjin-san says:

    Let the citizens decide.

    I’m sorry, but the citizens don’t get to decide we are going to have second class citizens in America.

  9. Xenos says:

    @anjin-san: Exactly. That argument was lost when the XIVth amendment was ratified. The courts are just catching up to the framers.

  10. Clanton says:

    Does this ruling eliminate any definition of marriage?

  11. OzarkHillbilly says:

    @anjin-san: Oh no? Tell that to the blacks and Hispanics.

  12. ernieyeball says:

    @Clanton: Does this ruling eliminate any definition of marriage?

    As defined by the government or as defined by the church?

  13. Franklin says:

    B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,”

    Is this supposed to be that the class does not have a defining characteristic that bears relation to ability to perform or contribute to society? Otherwise, Jacobs’ own comment doesn’t appear to make sense on this one.

  14. Franklin says:

    Sorry, trying to emphasize the word ‘not’ there, not sure how the italics got applied wrong.

  15. Clanton says:

    @ernieyeball: The government. The churches can define the family any way they wish. Once the “redefinition” of family is changed by the government, what group will be next? Polygamists? Transgenders wanting to marry themselves? People wanting to marry family members?

  16. ernieyeball says:

    Does this ruling eliminate any definition of marriage?
    Once the “redefinition” of family is changed by the government, what group will be next?

    …definition of marriage? …”redefinition” of family (whatever that means???)
    Aren’t these two different things?

    If you have a problem with family members getting married you have some work to do.
    This map shows that about half the states allow it.

  17. Clanton says:

    @ernieyeball: Brothers – sisters?

  18. Al says:


    Can you come up with a reason that would pass the strict scrutiny standard? (Also, what is it with social conservatives and incest, beastiality and whatnot?)

  19. ernieyeball says:

    Transgenders wanting to marry themselves?

    I find it difficult to take anyone seriously who would make susch a remark.

  20. Al says:


    I’d be willing to bet real money he meant hermaphrodites, not transgenders. Still, doesn’t make a lick of sense but it does fit in with a social conservative’s complete obsession with sex.

  21. ernieyeball says:

    That came to my mind but I figured it was a waste of time to try to make the distinction for Clanton, or his/her sister/brother.
    Oh yeah, you better watch out what your licking or some one will want a law against that too!