A Roundup of Thoughts on Recent DOMA Decisions

Last week the Second Circuit Court of Appeals in New York ruled that Section 3 of the Defense of Marriage Act (DOMA) [PDF] was unconstitutional, based on the idea that homosexuals are a protected class that require heightened scrutiny in federal laws. (Windsor v. United States) A number of legal scholars and journalists around the country have analyzed the decision in light of previous DOMA decisions and in light of what a challenge at the Supreme Court may look like.

DOMA has two main effects: (1) It prevents the federal government from requiring that any state or political subdivision recognize a same-sex marriage from another state; and (2) Section 3 of the Act codifies the non-recognition of same-sex marriages for all federal purposes. In 2011 the Obama Administration announced that it deemed Section 3 of DOMA unconstitutional, and although it would continue to enforce it, it would no longer defend it in court. Section 3 has been found unconstitutional in eight federal courts, including the First and Second Circuits.

Dale Carpenter has put together a good—if short—analysis of DOMA’s fortunes in court, with some nice predictions about how the Supreme Court may address the matter. The New York Times also produced a nice article providing a bit more information about the background on the conflicting opinions regarding discrimination and levels of scrutiny.

Some corporate lawyers talked with Shannon Green at Corporate Counsel regarding the effect of the rulings on their companies’ approach to offering benefits to families of employees in same-sex relationships. It seems that believe that the writing is on the wall regarding the restriction of federal protections from same-sex couples and that it is in employers’ interests to implement these benefits sooner rather than later. The article raises the question about whether companies are doing this because of the perception of inevitable civil rights legislation, or because the employees and the culture at large is dictating the change.

And Joe Palazzolo at the Wall Street Journal Law Blog nicely sums up the ruling in a piece citing law professor and Volokh Conspiracy contributor, Jonathan H. Adler. Adler predicts that the Second Circuit’s ruling “makes it more likely that the Supreme Court will strike down Section 3 of DOMA when this issue finally comes before the Court.”

(photo: Shutterstock: 110026151)