Discrimination | DOMA | Edie Windsor | Gay Marriage | New York | News

BREAKING: Second Circuit Court Finds DOMA Unconstitutional

6a00d8341c730253ef017d3c5fca22970c-800wiWe have some breaking news out of New York: The U.S. Court of Appeals for the Second Circuit has ruled on Windsor v. the United States, a case challenging Section 3 of the Defense of Marriage Act, and found a federal definition of marriage as one man and one woman violates the U.S. Constitution.

"[W]e conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional," they wrote.

Our legal eagle Ari Ezra Waldman will have a full analysis soon.

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  1. Hurray! Paul Clement and John Boehner have lost every chance they've had to defend DOMA. Time for them to read the writing on the wall!

    With so many courts declaring it unconstitutional, it's going to be tough for SCOTUS to say that they are all wrong. This is looking good for all of us.

    Posted by: Randy | Oct 18, 2012 12:00:15 PM

  2. How lucky we are to be witnessing this kind of positive history. The plaintiffs and plaintiffs' lawyers in these cases are heroes.

    Posted by: Stefan | Oct 18, 2012 12:21:09 PM

  3. Certainly excellent news....

    What I am curious to know....
    IF Boehner and his clan have already spent their allotted and voted for budget of $1.5 mil for their lawyers at BLAG---

    Where will the additional money come from to pay their lawyers to argue the cases pending the Supreme Court ?

    Is it legal for outside funding to pay them? Will BLAG argue the cases for Free...

    Will the BLAG people just not show up to argue the cases ?

    I dunno..and am curious....

    Posted by: anthony | Oct 18, 2012 12:21:10 PM

  4. I hope you're right, Randy. I'm all hot to marry my boyfriend. Of 21 years.

    Posted by: Grant | Oct 18, 2012 12:29:01 PM

  5. Don't get too excited about this. Remember they had no problem overturning a presidential election. Yes,this is good news, but don't bet any money on a favorable outcome for our side in the Supreme Court.

    California should have put Prop 8 back on the ballot for repeal by the voters, and I think it would have been this time around. DOMA can and should be repealed by Congress. My guess is that this might well be the argument the Supreme Court will make in these cases.

    The only ray of light, and it is a very dim one, is that Roberts may not want his legacy as Chief Justice to be that of a political hack. Which I personally believe is why he voted to uphold Obamacare. I just find it hard to believe that this court allow the equal protection argument to prevail. I hope I'm wrong.

    Posted by: zekeaz | Oct 18, 2012 12:38:09 PM

  6. It is another knife in the cold heart of the Catholic Church and Cardinal Tim Dolan.

    Posted by: Tim | Oct 18, 2012 12:48:02 PM

  7. John Boner will cry again.

    Posted by: simon | Oct 18, 2012 1:12:24 PM

  8. Finding DOMA Section 3 unconstitutional would not mean that all states have to allow gay marriage, nor would it mean that all states have to honor gay marriages from other states. It would allow access to federal tax benefits during life and relating to surviving spouses. The Supreme Court could easily uphold the unconstitutionality of Section 3, given its current composition.

    The more interesting issue is the application by the Second Court of a heightened level of judicial scrutiny to a state's rationale for same-sex classification. The Supreme Court's holding will have to apply a standard, and the standard chosen will have far-reaching implications about a state's authority over the moral sphere.

    Posted by: Stefan | Oct 18, 2012 1:39:24 PM

  9. One last point about Roberts: the decision on the individual mandate of the Affordable Care Act should not be taken as any signal about his desire to "be political." The Supreme Court has only been political once (according to even liberal legal scholars): Roe v. Wade. The Obamacare decision was actually fairly conservative despite the policy outcome. It restricted SCOTUS' Commerce Clause interpretation in such a way that future "social" legislation is more likely to violate that Clause. And it found the mandate was a tax, and therefore is easier to repeal by any future Congress. Roberts could very well rule against Section 3 of DOMA and still be preserving a conservative legacy by keeping marriage equality a state issue. And if a same-sex classification is reviewed under a rational basis standard, any future challenges of state marriage ban as unconstitutional will be *very* difficult to win before SCOTUS.

    Posted by: Stefan | Oct 18, 2012 1:51:37 PM

  10. Let's be clear.

    DOMA was NOT found unconstitutional, just section 3.

    As far as I can tell, Section 2 is as secure today as it ever was.

    Posted by: Randy | Oct 18, 2012 2:15:08 PM

  11. So much for the claims that Romney will do away with gay marriage.

    Posted by: Yo Momma | Oct 18, 2012 2:40:57 PM

  12. Everyone ignore the racist troll yo mamma.

    Posted by: MateoM | Oct 18, 2012 4:03:58 PM

  13. "Roberts could very well rule against Section 3 of DOMA and still be preserving a conservative legacy by keeping marriage equality a state issue."

    Except that Section 3 of DOMA forces states with marriage equality to divide their married citizens into 2 unequal classes--I'm no lawyer, but I thought that this is a state issue. And clearly the arguments for seeing Section 3 as constitutional are weak, or else we wouldn't have so many decisions in our favor.

    Posted by: Ernie | Oct 18, 2012 4:35:34 PM

  14. Ernie: If Roberts ruled with a majority that Section 3 was unconstitutional, most would have a kneejerk reaction of this as being somehow liberal/anti-conservative (as they incorrectly reacted to the Affordable Care Act decision). I was pointing out that doing so would still allow states to decide on their marriage equality stance, thus ultimately preserving states' rights. Preservation of states' rights and non-interference by the federal government is a classically conservative position.

    Posted by: Stefan | Oct 18, 2012 5:06:29 PM

  15. The time has come to make plural marriage legal across the land.

    Posted by: Sophianova | Oct 18, 2012 5:38:50 PM

  16. I don't doubt that some would have that reaction, Stefan, but conservative judges, ones whp presumably value states' rights, have found DOMA unconstitutional. I'm not saying that Roberts will be one of them, particularly since he has shown activism in other rulings--that's for the legal folks to debate.

    But I disagree with your assessment of Section 3 of DOMA because it can, in fact, be seen as interfering with states' rights--my state wants all VT married couples to be treated equally, and Section 3 of DOMA prevents it. That's why states such as mine have filed amicus briefs in DOMA cases.

    Posted by: Ernie | Oct 18, 2012 7:29:03 PM

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