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Second Circuit nixes DOMA

The U.S. Court of Appeals for the Second Circuit. File photo

NEW YORK — A divided Second Circuit 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 U.S. Supreme Court is expected to take up the case in the next year.

The U.S. Circuit Court of Appeals for the Second Circuit 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 Second Circuit went further 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.

The ruling came in a case brought by Edith Windsor. She sued the government in November 2010 because she was told to pay $363,053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.

The law, which denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognize such marriages, was passed by Congress and signed by President Bill Clinton after it appeared in 1993 that Hawaii might legalize gay marriage. Since then, many states have banned gay marriage but several have approved it, including Massachusetts and New York.

New York, in June 2011, became the largest state to

Gov. Andrew M. Cuomo, noting New York, in June 2011, became the largest state to achieve marriage equality, said the ruling provides further momentum for national progress on the important civil rights issue.

“What we did here in New York can only be the beginning and we must continue to work together until all Americans are free to marry whom they love and are entitled to all of the rights and benefits of marriage equally, regardless of sexual orientation,” he said in a prepared statement.

Attorney General Eric T. Scheiderman called the decision a major step forward in the fight for equality and said he was pleased the court recognized the act lacks an adequate justification and violates the equal protection clause of the U.S. Constitution.

He had filed a friend-of-the-court brief with Vermont and Connecticut, arguing that DOMA violates same-sex couples’ right to equal protection under the U.S. Constitution and should be more closely scrutinized because it constitutes a sweeping intrusion into the states’ regulation of marriage.

“As we argued in our brief in this case, the court examined the proposed justifications for the statute with special care, both because the statute burdens gay and lesbian married couples, and because it intrudes on the traditional role of states in defining marriage,” Schneiderman said. “The state of New York has long recognized out-of-state, same-sex marriages, and the enactment of the Marriage Equality Act further cements our state’s position on this critical civil rights issue. My office will continue to fight every day to defend the fundamental guarantee of equal protection of the law for all New Yorkers.”

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