Judge Jacobs strikes down DOMA sec. 3

by Walter Olson on October 18, 2012

Get ready for the cognitive dissonance among many on both left and right: Second Circuit chief judge Dennis Jacobs, long a favorite of the Federalist Society (and of mine), has written the opinion striking down section 3 of the Defense of Marriage Act (DOMA) in Windsor v. U.S. I have more at my Maryland for All Families blog.

{ 3 comments }

1 Leland D. Davis 10.20.12 at 2:54 pm

Notice that the two major points the judge made were 1. Federalism – marriage is traditionally a states perogative in our system of government, and having a federal law which takes that policy away from states intrudes upon state sovereignty. 2. Homosexuals as a “quasisuspect” class.
Now, look at what a certain somebody is trying to argue with respect to California’s prop 8 in federal court, that a right to same sex marriage is somehow embedded in the United States Constitution. I don’t know how you can argue that, in the case of DOMA, marriage is for the states to decide, and simultaneously, for California prop 8, marriage law is decided by the federal constitution.
Perhaps it is because I am not a lawyer, but I can see how a decision to strike down DOMA on federalism arguments might not be compatible with current efforts to strike down California prop 8.
Leland D. Davis

2 asdfasdf 10.21.12 at 4:49 am

I don’t read the decision, http://www.scribd.com/fullscreen/110430137?access_key=key-2crcjwdmry9rzmbm35b2 , as striking on federalism arguments. I read it as striking on equal protection grounds. The federalism issue arose only because one of the government’s defenses against the equal protection intermediate scrutiny was that the act was required for reasons of uniformity. The court argued that this uniformity defense was unpersuasive because the federal government had historically deferred to states in marriage issues: the concern with “uniformity”, the court suggests, was merely a litigation position that was not the real reason for the law’s enactment, i.e., the court suggests the uniformity rationale was pretextual.

So, the federalism only arises in the context of this one particular defense (uniformity) to a claim that the act violates equal protection under an intermediate scrutiny level of review. It is not really a federalism or state’s rights argument in the sense of the 10th amendment.

3 Hugo S. Cunningham 10.21.12 at 12:14 pm

In its time (1996), DOMA might have been supported even by some sympathizers of gay rights (if only the obnoxious title were changed), as a way to let off steam. Without it, there was a real chance that our Constitution might have been defaced by some anti-gay rant, likely to recognized as embarassing within a generation.

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