Second Circuit Holds DOMA Unconstitutional, Supreme Court Up Next: An Analysis

There are three substantive take home lessons from the Second Circuit's decision:

1. That Baker v. Nelson is irrelevant.

2. That antigay discrimination merits heightened scrutiny.

3. That DOMA fails to meet heightened scrutiny and is, therefore, unconstitutional.

Let's take each point in turn.

Baker v. Nelson is irrelevant and, in any event, outdated.

Baker v. Nelson was a summary dismissal of an appeal from a Minnesota Supreme Court decision that said that Minnesota law did not allow gay couples to marry and that such a law did not violate the Federal Constitution. When the Supreme Court shoots down a "summary dismissal," it is almost like ignoring it, or saying that the case does not raise any issue for a federal court to address. In doing so, the Court restricts using that case as precedent to the very specific set of facts in that particular case. And that is why Baker is irrelevant to DOMA. Windsor asked the question of whether the federal government can define marriages as opposite sex marriages for the purposes of federal benefits while Baker asked whether a state can restrict marriages to opposite sex couples in the first place. 

Perhaps more importantly, the Court said that even if it is wrong about that (it is not), Baker is no longer good law. Significant doctrinal developments since Baker, which was decided in 1971, have changed the landscape of minority and gay rights, in general, and marriage rights, in particular. There was no such thing as intermediate scrutiny in 1971. Antigay discrimination did not even need a rational basis until 1996 (Romer v. Evans). And, until Lawrence v. Texas in 2003, gays were still presumptive criminals.

What's more, the court said, Baker does not foreclose us from using heightened scrutiny on antigay discrimination. Here, the Second Circuit departs from the First Circuit's decision in Massachusetts, which refused to use heightened scrutiny because Baker appeared to stand in the way and enshrined discrimination into federal law. First, the level of scrutiny for federal marriage discrimination could be different than the level of scrutiny for a state's marriage discrimination law, only the latter of which could even implicate Baker (though the Court does not say Baker would be a barrier to heightened scrutiny in that case, either). Second, the Supreme Court's refusal to use heightened scrutiny in Romer is not dispositive on anyone; the petitioners in that case gave up their call for heightened scrutiny at the trial level, so the issue was never properly before the Court.

Analysis: Almost every federal court decision on DOMA has pushed Baker v. Nelson aside and yet the Congressional Republicans defending DOMA now keep coming back with it. It is a losing argument and the Second Circuit offered us the best explanation to date: Baker refers to state law, the legalization of marriages in the first place, not the federal laws that are triggered when a valid marriage happens at the state level. Plus, Baker is outdated: it was from a time long before gay Americans were liberated from the status of enemies of the law.

Heightened Scrutiny for Antigay Discrimination

The court then recognized that the law of scrutiny in this area is in a state of flux or uncertainty. Congressional Republicans want the barest and lowest form of rational basis review. The First Circuit used a "rational basis plus" level of scrutiny that has been used for discriminatory social legislation. The district court below claimed to use simple rational basis. The Second Circuit had no dog in this fight, however; heightened scrutiny was appropriate here.

The four factors for determining use of heightened scrutiny — history of discrimination, a defining characteristic that is relevant to the classified group's ability to contribute to society, obvious distinguishing characteristics, and minority status or political powerlessness — are all present. And, although "immutability" and "powerlessness" are not determinative, all factors counsel in favor of heightened scrutiny. 

For the next several pages, the court reasons through each factor, slapping down Congressional Republicans' sometimes hateful arguments. They tried to argue that because gays were never disenfranchised, gays have no history of discrimination. The court laughed this off, noting that the Republicans' attorney, Paul Clement, conceded that gays have been discriminated against "at least since 1920." They then tried to argue that while the status of being gay does not limit one's ability to contribute to society, the status of being a same-sex couple diminishes that couple's ability to procreate and raise children. This is Congressional Republicans at their homophobic best, and the Court not only rips them for failing to cite any authority for that falsehood but for positing an irrelevant fact for determining scrutiny levels. They tried to argue that sexuality changes over time, so gays, as a sexual identity, are not immutable. Even if that were true, the court said, it's irrelevant. The test requires an obvious distinguishing characteristic that sets apart the victimized group from the rest of the population. The fact that a law exists discriminating against them for their same-sex attraction is proof enough of the defining trait. And, they tried to argue that improvements in the political environment for gays has made gays powerful. The court again laughed this off, noting that Congressional Republicans were missing the point: the issue is not the fact of some power or improvement in political power, but rather the groups ability to protect themselves from discrimination in the political sphere. Gay American cannot do that, as evidenced by the slew of antigay laws passed against us.

Analysis: Affirming the use of heightened scrutiny for antigay discrimination is an unprecedented victory for the gay rights movement. We have been calling for this substantive change in the law for years and our efforts were exponentially aided by President Obama deciding to stop defending DOMA and declaring his Administration's position in favor of heightened scrutiny. But today's decision is not only an affirmation of what we all know to be true. It also places the Supreme Court in a unique position. Windsor disagreed with Massachusetts on the level of scrutiny, so there is now a clear circuit split on the matter and one that can only be resolved by the Supreme Court. 

Although I have argued that the DOMA cases offer the Supreme Court a chance at conservative and liberal agreement, it is not clear how they will come out on the appropriate level of scrutiny. DOMA has the chance to be struck down with six votes (the four moderate-liberal justices, including Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, alongside the author of Lawrence and Romer, Justice Anthony Kennedy, and Chief Justice John Roberts, who may hate DOMA's federal encroachment and may not want to be on the wrong side of history on this case), but the scrutiny level will be up to Justice Kennedy. He purposely left the scrutiny level obscure in Lawrence and never had the option to consider it in Romer, so he may be disinclined to clarify it any more. However, he cannot deny the uncertainty he has created — countless lawyers, courts, and academics have argued as much — so he may be interested in clarification.

DumpdomaDOMA is Unconstitutional

Heightened scrutiny requires that the proponents of a discriminatory law prove that the law is "substantially related to an important government interest." That unhelpful phrase means that the justification must be really important and the stated interests must be real, not ad hoc or derived ex post. At oral argument, Mr. Clement basically conceded that none of his profferred interests — maintaining a consistent definition of marriage, securing the fiscal state of the federal government, and, oddly, "avoiding the unknown consequences of a novel redefinition of a foundational social institution," and encouraging "responsible procreation" — could withstand heightened scrutiny. The Second Circuit agreed.

To the extent that there ever was a uniform definition of marriage, it was whatever the state's wanted. And, if anything, DOMA created more complexity by leaving all the other differences in the various state marriage laws in place and adding a new, novel criterion it never had asked for before.

Nor can DOMA be justified because Congress hoped to save money. That government interest, though important, is not sufficient to justify discrimination alone. Here, the Second Circuit adds two points not well developed in other decisions striking down DOMA: First, the law actually effectuated a benefit withdrawal from married couples in that, previously, any married couple would get the same benefits and, with DOMA, only the opposite-sex ones could. Second, DOMA's breadth, touching on so many areas of federal law that have nothing to do with money, belies any suggestion that it has anything to do with conserving fiscal resources.

DOMA could not be justified as a means of preserving the traditional definition of marriage, an interest the court found dubious in the first place, but practically impossible to achieve via DOMA. After all, the law leaves in place marriage law in the various states, where several (and soon, hopefully 3 more) allow same-sex couples to marry.

And, DOMA could not in any way encourage responsible procreation, an admittedly important government interest, because DOMA provides no incentives for opposite sex couples to enter a marriage and then have children. Instead, the law is a sword that keeps people out of wedlock and there is no evidence to suggest that opposite sex couples will marry only if gays are kept away from it.

Analysis: In holding DOMA unconstitutional under heightened scrutiny, the Second Circuit followed its sister and lower courts by showing how unrelated DOMA is to anything other than bare discrimination against gays. It also went further. It emphasized the great reach of the law and took a logical approach to finding a connection between a law and supposed interests that make no sense. The court also put its ruling in context, noting that gay marriage used to be an unknown in marriage law. But, the law is not concerned "with holy matrimony," but with "civil marriage." It showed that its home jurisdiction, New York State, has opened the doors of marriage to gay New Yorkers, but in so doing, did not touch a church's right to and role in blessing that union in the eyes of a given conception of god. The implication is that any law concerned with such divine matters of morality has no place in American life.


The Second Circuit's decision in Windsor is a great victory for the gay community in several ways. In the most practical sense, it declared DOMA unconstitutional and puts Ms. Windsor one step closer to the money she was forced to pay simply because she is gay. As a substantive matter, Windsor puts us all closer to DOMA review at the Supreme Court because it is a case that raised similar issues to Massachusetts, but had unique elements. Now that the case has arrived at the Court's door in the normal course, we can expect the Supreme Court to grant certiorari within a few months.

More broadly, the decision reflects the progress of gay rights in the courts. I have spoken at length at how one decision moves other decisions, which build on other decisions, and make the next decision easier. That is why Lawrence, which was about anti-sodomy laws, Perry, which is about gay marriage in California, and Windsor, which is about federal benefits, are all related. The Second Circuit cited Supreme Court, appellate court, and district court decisions on gay rights, minorities, federal benefits, and a host of other areas to show that DOMA's discrimination is unconstitutional. And, while making obvious distinctions between DOMA and, say, state bans on the freedom to marry, progress on DOMA brings us many steps closer to overturning all state and federal laws that brand us as second-class citizens.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.


  1. Joe says

    What about the items brought up in the dissenting judge’s statement? Does he bring up items which could impact us adversely if/when it goes to the SCOTUS?

  2. friend says

    federal appeals court in New York is full of dumb ignorant arses Marriage is a God given institution. the government just recognizes it for tax and legal purposes. The Sinner gay people are in relationships that God CONDEMS! Let the gay people have civil unions and grant them equal legal rights. But NOT Marriage as it is and always has been a God given institution. May God Forgive and help you all?

  3. LiamB says

    Hate to be the one to break it to you, Friend, but your “God” didn’t create marriage, humans did. And to be frank, “marriage” isn’t even an original term, so the claim that the word describing unions matters is utterly laughable.

  4. Glenn says

    Ari, procedurally speaking do you know what happens to the petition for cert before judgment that was already pending in Windsor? Is that wiped out now, and they start over again with the normal cert process?

  5. says

    what about the religious denominations that support Marriage Equality?

    next you’ll have “Friend” here out protesting atheist marriages and Jewish marriages.

  6. anthony says

    Thank you for the additional info and clarifications…

    I am still curious to know “WHO” and where the money is coming from to pay the BLAG lawyers in the future SCOTUS cases ?

    Will they defend their arguments for Free ?
    or hope their sponsors will extend tax funds…

  7. Joe says

    @friend: Maybe you should educate yourself a bit more and perhaps learn how to use a dictionary and/or spell check. Even if you don’t believe in Evolution, it seems to be working against you.

    But you are wrong. Marriage is not a God-given institution. It is a contract and civil union. It can go along with holy matrimony and/or blessing, but the latter is not a requirement. You might consider reading up on it all a bit.

    And may God forgive you too, as you are also going against things with God also condemns.

  8. Stefan says

    “Expect the grant of certiorari within a few months.”

    Within a few months? Most I know are expecting a decision sometime next month.

  9. Tyler says

    I literally couldn’t imagine a better-written decision. It does everything a decision like this should do, in a perfect and concise way. The icing on the cake is that Chief Judge Jacobs, who is extremely conservative, wrote the decision.

    Not sure what’s going to happen on cert. This is clearly a better vehicle for SCOTUS review than the Massachusetts case, because Justice Kagan would definitely not have to recuse on this case. I imagine the petition for certiorari of the district court opinion is moot, now, though, and a new petition will have to be filed from this judgment, which will unfortunately likely delay the granting of cert for a few months and, apparently, the end of Prop 8 as well.

  10. Stefan says

    I’m not sure about that Tyler. The plaintiffs and defendants have both shown that they want these cases to proceed as fast as possible without delay.

  11. Tyler says


    The House now has to draw up an entirely new petition that responds to all the arguments made by the Second Circuit. There’s no way that takes less than several weeks, even if they don’t use the full 90 days. Then the other side has to respond, which again will take at least several weeks. Then the House gets a chance to respond and it’s distributed to the Justices. I don’t see this case being ready to be accepted by the Justices until January. Under that timeframe they could probably schedule the argument at the last available time in April, so it would probably not delay the ultimate resolution of the case at all.

    But I don’t see it happening quicker. I’d obviously love to be wrong on that, because they’re probably going to reject the Prop 8 appeal on the same day they take this case, and the sooner that happens the better. But it is what it is.

  12. devon charles says

    I’m very concerned that a Romney election would stop progress at the supreme court.
    Romney would likely order DOJ to reverse positions and defend DOMA again as soon as he’s in office. He pledged to defend DOMA repeatedly and the DOJ would be given ample time to issue new legal papers.

  13. Randy says

    Brilliant analysis by both the court and Ezra. It addresses all the arguments, and dismisses them all. Paul Clement should be embarrassed for himself as an attorney.

  14. Burch says

    Ari, should the second line of the second paragraph under heightened scrutiny read “defining characteristic that is IRRELEVANT to” rather than “relevant”?

  15. anon says

    Friend: this ruling does not affect whether or not gays can marry, just whether or not the Federal Govt. can discriminate against married gays (those already married, say in NY). Your argument for equal legal status was actually in favor of the ruling! Not clear if the ruling effects civil unions.

    I would think the SC will sit on their hands as long as possible on this. Since this involves federal law, there would be no change in policy without their ruling, since the IRS and other federal agencies won’t really be able to implement the rulings from the appeals courts. This is a sticking point in federal law, which essentially means that the executive branch can’t change policy unless the SC rules on it, particularly with multi-state bureaucracies.

  16. MaddM@ says

    this is the United States, where we are free to not abide by anything decreed by “god” (read: christian churches and their earthly leadership)

    I’m glad judges are seeing the light on this, and not surprised that conservative judges are ruling this law unconstitutional because it OBVIOUSLY IS. No piece of simple legislation can override something in the constitution, it’s civics 101, and DOMA does exactly that. Someone needs to tally haow much $$ has been wasted passing and defending this awful piece of legislation and throw it into the “small goverment” republicans’ faces at every point possible.

  17. Patrick Garies says

    @Al in SoCal: The decision was decided 2 to 1:

    * Chief Judge Jacobs (H.W. Bush appointee)
    * Judge Droney (Obama appointee)

    * Judge Straub (Clinton appointee)

  18. Sean says

    Ari, please be sure to tell us how this ruling might impact Dharun Ravi. We know that his happiness and well-being are your top priorities, so please don’t forget to cover this in your next post.

  19. DenguyFL says

    Ari or anyone else,

    It seems that DOMA is sex discrimination on the face of the statute. The words “one man” and “one woman” are right there in it. Is there a reason it is being litigated on the basis of discrimination based on sexual orientation rather than on sex which already requires a higher level of scrutiny?

  20. BABH says

    Dear god, Harvard, please proofread. I mean, thanks for the quick turn-around on your excellent analysis of a crucial gay rights case, but “site” for “cite?” Apostrophes? It’s enough to make this Yalie’s eyeballs bleed.

  21. The Polar Beast says

    @ARI Would the Office of Personnel Mgmt case be a better case for SCOTUS to review first or one of these cases?

  22. Ken says

    Gandalf: No matter how the court decides this case, neither side will have the votes to impeach anyone. So not relevant.

  23. RedRoseQueen1 says

    We have a friend who has been with his partner for almost 36 years. He’s a few years older than his partner and not in good health any longer. He hates the thought of his lifelong partner not being able to collect HIS SS when he passes (since it is a much higher amount)
    They have refused to have any kind of commitment ceremony on principle. Until their union is FEDERALLY recognized, they won’t have the same federal rights as a married couple. I’m keeping my fingers crossed and holding my breath! I am an agnostic bordering on atheist and for good reason.I’m so fed up with ignorant comments like the one above from “Friend”…sheesh!

  24. TruthSeeker_Two says

    @Redrosequeen1: Your friends HAVE to get married as soon as possible in a U.S. state or Washington, D.C. — where marriage is legally recognized. I know that Iowa and New York do NOT have a residency requirement, so you can apply for a marriage license and get married without having to move there.
    But they MUST get married! That will cement a claim of the surviving spouse to collect the higher Social Security benefit. If they DON’T get married, then there will not be any basis for recovery once DOMA is swept away. Please urge them not to wait any longer and risk losing out on the surviving partner’s claim!

  25. mikenola says

    Ari, while I agree with the results of this decision and your explanation here. Please make sure you do as good a job with the dissenting opinion by Judge Straub.

    As an uplift for those of us in the LGBT community it is great to focus on the positive rulings we earn in court. The problem with only doing that is it creates an echo chamber and gives people a false sense of security.

    You, and the Second Circuit decision dismiss the reality of Baker. The pro-LGBT opinion is that Baker is irrelevant, and you promote the idea that SCOTUS will do that also.

    In fact SCOTUS could cite Baker as controlling. I certainly hope they don’t, but they can.

    The difference between State and Federal, as written, is a hair that SCOTUS may not choose to split at this time. Particularly for the Right Wing of the court, splitting that hair generates a whole lot of problems in relation to the LGBT cases. Straub made it plain that those on the right wing can easily ignore that facet of Baker and judicially be on firm ground.

  26. says

    To “Friend”: Marriage – to be exact, the marriage contract, was invented by the ancient Egyptians, specifically by the goddess Isis, not by Yaweh, Allah, or Jesus Christ. Anyone can perform a marriage ceremony – Kim Kardashian is licensed to; but without a marriage contract, a marriage ceremony is just that,a ceremony. Even two atheists can get married, and yet God is more hurt when an opposite sex coupled divorces, especially when they are childless; children being the best excuse for staying in a marriage that basically has been sucking for years and years now.