Second Circuit Strikes Down Defense Of Marriage Act

Last week the Second Circuit Court of Appeals became the second federal circuit court (the First Circuit led the way) to strike down section 3 of the Defense of Marriage Act (“DOMA“) on equal protection grounds.  (Click here to read ruling.)   Section 3 states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Beyond the ultimate disposition of the case, what is striking about the Second Circuit’s decision  is that the court applied heightened scrutiny in evaluating the constitutionality of section 3, which obviously excludes gays and lesbians.  (The First Circuit had applied rational basis review to DOMA.)

The use of heightened scrutiny to evaluate DOMA is the first for a federal court.  But readers may remember that the Connecticut Supreme Court, in ruling that same-sex marriage was constitutional in Connecticut, applied heightened scrutiny as well.  Indeed, the bulk of the opinion in Kerrigan v. Comm’r of Public Health was dedicated to justifying the Supreme Court’s decision to apply intermediate scrutiny to laws that discriminate based on sexual orientation.

The United States Supreme Court will likely decide next month whether to grant certiorari in the DOMA cases.