'Ninety Years of Discrimination' Is Enough, Court Declares

The District Court struck down DOMA without deciding a level of "scrutiny." That's because it said the law was animated by the "desire to harm a politically unpopular group" (in other words, "just plain mean"), and thus failed any level of review.

By this time, the Obama administration had announced that it would no longer defend DOMA. A group of members of the House stepped in, represented by appellate wunderkind Paul Clement, and the case proceeded to the Second Circuit. That court's decision was announced yesterday, and Windsor won big.

Here's interesting news for everyone who believes law is just partisan politics: Chief Judge Dennis Jacobs, whose majority opinion breaks new ground for gay rights, was appointed by President George H.W. Bush; Judge Chester J. Straub, who insists that preserving traditional marriage justifies DOMA, is a Democrat appointed by Bill Clinton. The two opinions are readable even for non-lawyers, and worth a few hours of your time.

The heart of Judge Jacobs's majority opinion is his conclusion that gays and lesbians are a "discrete and insular minority," meaning that they need judicial protection from majority ill will. He cites the criteria from case law about how to decide which groups qualify for "heightened scrutiny":

A) [H]omosexuals 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.

In his discussion of whether gays have "historically" been persecuted, Jacobs writes:

[The congressional group defending DOMA] argues that, unlike protected classes, homosexuals have not "suffered discrimination for longer than history has been recorded." But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a "history of discrimination."

Because the majority finds homophobia rampant in law and culture, it employs "heightened scrutiny" against DOMA and strikes it down.

Judge Straub stakes most of his defense of the statute on the federal government's interest in refusing recognition to same-sex marriage: "It is squarely about the preservation of the traditional institution of marriage and its procreation of children."

[R]eserving federal marriage rights to opposite-sex couples "protect[s] civil society," ... because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families. Marriage thus plays the important role of "channel[ing opposite-sex] sexual desires" which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children. ... DOMA advances this interest, in that the state only needs to provide incentives to opposite-sex couples in the form of marriage, because only opposite-sex couples have unintended, unplanned, unwanted children.

Though Windsor is a breakthrough for gay rights, I doubt that the "heightened scrutiny" holding will survive. The Supreme Court, I think, will strike DOMA down. But in the Marble Palace, a good opinion is one that gets five votes, and there are so many other ways to hold for the Edith Windsors without breaking new ground. DOMA arguably violates the power of states to govern marriage -- who is Uncle Sam to second-guess Massachusetts or New York about what's a valid marriage? Or it could easily fail "rational basis" review, on the grounds that the only "interest" it advances is dislike of gays.

But whatever comes later, Windsor is an important way-station on society's march to a new understanding of equality. It also displays American law at its best -- humane, clear-eyed, and civil.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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