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A Second Appeals Court Calls Marriage Law Unfair to Gays U.S. Marriage Act Is Unfair to Gays, Court Panel Says
(about 4 hours later)
A federal appeals court in Manhattan ruled on Thursday that the federal statute defining marriage as a union between a man and a woman unlawfully discriminates against same-sex married couples by denying them equal federal benefits. A federal appeals court on Thursday ruled that gay Americans are a class of people who deserve the same kinds of constitutional protections as many other victims of discrimination.
The United States Court of Appeals for the Second Circuit is the second federal appeals court to reject a central portion of the federal law, the Defense of Marriage Act, following the United States Court of Appeals for the First Circuit, in Boston, which handed down its ruling in May. The 2-to-1 ruling, by the Court of Appeals for the Second Circuit in New York, came as the panel struck down the federal law prohibiting federal recognition of same-sex marriage. It is the first time that a federal appeals court has applied this level of constitutional protection — known as heightened scrutiny — to those unions. It is now considered by some legal scholars to be the leading candidate for a Supreme Court review of the same-sex marriage issue.
But this decision on Thursday is the first time that an appeals court has subjected the law to a relatively tough test for constitutionality that, in effect, elevates issues of sexual orientation to the constitutional level of cases involving sexual discrimination. Thursday’s decision is the second by a federal appeals court striking down the Defense of Marriage Act. Now the case, Windsor v. United States, could be considered by the Supreme Court, or the court could choose other cases concerning same-sex marriage in its pipeline. Those include an earlier decision on the act by the First Circuit in Boston and one from the Ninth Circuit overturning California’s ban on same-sex marriage. It could also decide to hear all of them.
The Supreme Court may take up the issue as soon as the current term. “It’s an incredible moment in the struggle for gay rights in this country,” said James D. Esseks, director of American Civil Liberties Union’s Lesbian Gay Bisexual and Transgender Project.
Two of the three judges on the Manhattan court ruled in favor of Edith Windsor, an 83-year-old woman whose case challenged the 1996 statute, saying it violated the Constitution’s equal-protection clause because it recognizes the marriages of heterosexual couples but not those of same-sex couples, even though New York State law makes no such distinction. The new case was brought on behalf of Edith Windsor of New York City, who married her longtime partner, Thea Clara Spyer, in 2007 in Canada. When Ms. Spyer died in 2009, Ms. Windsor inherited her property. Because the Internal Revenue Service was not allowed to consider her a surviving spouse under the Defense of Marriage Act, she faced a tax bill of $363,053 that she would not have had to pay if the marriage had been recognized.
Mrs. Windsor, who filed the lawsuit in November 2010, married her longtime partner, Thea Spyer, in Canada in 2007. The two had been together for 44 years. Because the Supreme Court now has disagreement among circuits on a major issue of law involving the Defense of Marriage act, “this makes it more likely” that the Supreme Court will take up the cases, said Douglas NeJaime, an associate professor of law at Loyola law school in Los Angeles. He noted that the most important justice in consideration of marriage cases was likely to be Justice Anthony Kennedy, who has sided with the liberal majority on such cases as Lawrence v. Texas, the case in which he wrote the majority opinion that struck down state sodomy laws.
Though the marriage was recognized in New York, when Mrs. Spyer died in 2009, Mrs. Windsor was not able to claim a deduction for a federal estate tax that is available for the surviving partner of a marriage between heterosexuals. Mrs. Windsor, who had been the sole beneficiary of Mrs. Spyer’s estate, was forced to pay $363,053 in estate taxes. When she requested a refund, the Internal Revenue Service rejected her claim, citing federal marriage law. As Justice Kennedy has proved mindful of federalism issues, Professor NeJaime said, he might be reluctant to take a case in which federal courts have struck down a state law like Proposition 8, in California. The Defense of Marriage Act cases, by contrast, struck down a federal law, and any decision by the Supreme Court would have an effect only in states that allow same-sex marriage. “This is the kind of case that would appeal to Justice Kennedy for the Court’s first intervention on same-sex marriage,” he predicted.
Judge Dennis Jacobs, who wrote the majority opinion, said the federal law was “not related to an important government interest,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.” It could also be a likelier case for the court to take instead of the First Circuit case because it could be heard by the full court, Professor NeJaime said. Justice Elena Kagan might recuse herself from hearing the First Circuit case because of her former role as solicitor general, leaving the possibility that the other justices could find themselves in a 4-4 tie.
The statute, approved by Congress and signed by President Bill Clinton, denies recognition of same-sex marriages by the federal government. In the intervening years, however, several states, including New York, have approved same-sex marriage, though others have passed laws banning it. Congress passed the Defense of Marriage Act in 1996, and in 2010 a federal judge in Massachusetts struck down the law as unconstitutional, declaring that restrictions on same-sex marriage had no rational basis, and failed even the most lenient test for constitutional scrutiny. That decision was upheld in May 2012 by the Court of Appeals for the First Circuit, which also declared the act unconstitutional.
In February 2011, the Obama administration determined that the provision of the law that prevents the federal government from recognizing same-sex marriages was unconstitutional, and President Obama said he had directed the Department of Justice not to defend that aspect of the law in court. The Obama administration initially defended the marriage act under the Department of Justice’s traditional role of defending acts of Congress as presumptively constitutional. In February 2011, however, the Justice Department declined to defend the act in court, though the government continued to enforce the law. The House created what it called the Bipartisan Legal Advisory Group to take on the case under the leadership of Paul Clement, a former solicitor general in the administration of president George W. Bush.
Mayor Michael R. Bloomberg of New York, who with City Council Speaker Christine C. Quinn, had filed a joint amicus brief supporting the lawsuit, said in a statement Thursday that the ruling represented “an important step in ensuring the rights of men and women are not dependent upon who they love and who they chose to spend their lives with.” Mr. Clement did not respond to requests for comment.
He added, “We have much more to do, but we are another step further on the road to a more perfect union for all Americans.” The majority opinion was written by Judge Dennis Jacobs, the chief judge of the circuit; he was appointed by the first President Bush. The decision was joined by Christopher F. Droney, who was appointed by Bill Clinton. Judge Chester J. Straub, also appointed by President Clinton, filed a partial dissent in which he argued that the issue of same-sex marriage “is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process.”
Mrs. Quinn, who married her partner in May, called the marriage law “an indefensible assault on our civil liberties” in a statement. The court in the Windsor case parted ways with previous courts by elevating the standard of review for laws restricting same-sex marriage to what is known as “heightened scrutiny,” and which is based in large part on whether the people subject to the law have been discriminated against.
Same-sex marriage is on the ballot this November in Maryland, Maine, Minnesota and Washington State. “It is easy to conclude that homosexuals have suffered a history of discrimination,” the court wrote. Thus they are part of what the law refers to as a “quasi-suspect” class that deserves any law restricting its rights to be subjected to such “heightened scrutiny.” Because the law could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection clause of the constitution.
In the Massachusetts appellate decision from earlier this year, Judge Michael Boudin wrote about the court’s concerns over Congress’s “effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Ultimately, Judge Jacobs wrote, the court’s legal analysis “sidesteps the fair point that same-sex marriage is unknown to history and tradition,” but those are questions concerning “holy matrimony,” not the civil status recognized under the law. “A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it,” he wrote. “For that, the pair must go next door.”
He concluded that “only the Supreme Court can finally decide this unique case.” Ms. Windsor, speaking on Thursday afternoon at a New York Civil Liberties Union news conference, proclaimed herself “thrilled” by the decision. Ms. Windsor, who is 83, said that she found it “so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.”
Ms. Spyer, she said, is “here with me in spirit and would have been so proud to see how far we’ve come.”

Alex Vadukul contributed reporting.