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Home / Expert Opinion / Workplace Issues: COA strikes down DOMA as unconstitutional

Workplace Issues: COA strikes down DOMA as unconstitutional

Lindy Korn

The Court of Appeals has ruled that the Defense of Marriage Act is unconstitutional, applying intermediate scrutiny in holding that the law cannot be applied against a lesbian who wanted a spousal deduction for her federal estate taxes after the death of her partner (see Windsor v. United States, 12-2335-CV, decided on Oct. 18).

The Second Circuit reviews the multi-part test used for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause. In order to qualify as a suspect class the following factors are examined:

• Whether the class has been historically subject to discrimination;

• Whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society;

• Whether the class exhibits obvious, immutable or distinguishing characteristics that define them as a discrete group; and

• Whether the class is a minority or politically powerless.

The Court of Appeals concluded, “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 discernable 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.”

Applying the heightened judicial scrutiny to discrimination against same-sex couples, the reasons offered by those defending the spousal benefits law are not good enough to save the statute.

These reasons include: the need to maintain a uniform definition of marriage; protecting the public fisc and preserving the traditional definition of marriage. As to the third factor, the Court of Appeals stated that “tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important governmental interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws.”

The court also said that it is no justification to say that Congress wanted to encourage responsible procreation. “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.”

Judge Straub dissented, stating that “The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.”

The standard of review as set forth by the Second Circuit, intermediate scrutiny for review of discrimination against gays and lesbians, is a first, as the Supreme Court has never taken on that issue.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).