A three-judge panel of the Second Circuit Court of Appeals has struck down the Defense of Marriage Act, upholding lower-court rulings that found the law, which discriminates against the marriage rights of gays and lesbians, unconstitutional. The author of the opinion, Dennis Jacobs, is a very conservative George H.W. Bush appointee. But even he had to acknowledge the nature of the case, ruling that discrimination of LGBT individuals deserves heightened scrutiny, and that therefore a federal law which discriminates against them must be treated skeptically.
[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.
Because this section applies to all discrimination based on sexual orientation, it could have far-reaching effects well beyond marriage, if the Supreme Court agrees with the argument and it becomes the law of the land. Anti-discrimination protections would have to be delivered to the LGBT community, including the freedom to marry.
This is a loss, more than anything, for Republicans in the House of Representatives. The Obama Justice Department stopped defending DOMA in court almost two years ago. John Boehner, at the behest of social conservatives, formed a legal team (known as the “Bipartisan Legal Advisory Group” despite the partisan nature of the effort), hired the very bipartisan former George W. Bush Solicitor General Paul Clement and funded the organization, to the tune of $1.5 million of taxpayer money. House Democrats criticized Republicans for this expenditure earlier this week.
Since the convening of the Bipartisan Legal Advisory Group, they have suffered loss after loss in the courts, and have accomplished absolutely nothing. Even conservative justices ruled against them. House Republicans talk plenty about wasteful spending, but never has so much money been spent on so little than the Bipartisan Legal Advisory Group.