Two Steps Forward & 1/2 Step Back

By Kate Paine, Esq.

At first blush, yesterday’s opinion by the Second Circuit Court of Appeals represents a resounding victory, both in the fight to overturn Section 3 of DOMA (which, again, essentially says that only one man and one woman are considered “married” in the eyes of the federal government), and in the quest to achieve marriage equality nationwide.   

Yet, keeping this end goal of marriage-equality in mind, what actually stands out most about the opinion is that it simultaneously represents two steps forward and one half-step back.  The two steps forward are a result of both the positive outcome reached and the advantageous method used to arrive at that outcome.  Unlike the lower court in this same case, and unlike the First Circuit Court of Appeals, the Second Circuit applied the more rigorous intermediate level of scrutiny in reviewing (and rejecting) Section 3’s constitutionality.  Where applicable, this standard requires that the government have an important reason for discriminating and the important reason be substantially furthered by the discrimination

In deciding that intermediate scrutiny was appropriate, the court determined that sexual orientation qualifies as a “quasi-suspect” class because of the history of discrimination against homosexuals, the group’s historical lack of political power, and the obvious absence of any connection between homosexuality and one’s ability to perform in and contribute to society.  Then, applying intermediate scrutiny, the court concluded that all of the reasons given in support of Section  either did not qualify as “important,” or, even if important, were not actually furthered by refusing to recognize lawfully-wed same-sex couples as “legally married” for federal purposes.  Consequently, the court declared Section 3 unconstitutional.

The reason the court’s decision to apply intermediate scrutiny is itself a step in the right direction, is because the fate of both Section 3 and other laws that discriminate based on sexual orientation, like laws forbidding same-sex marriage, essentially go hand-in-hand.   If Section 3 cannot survive intermediate scrutiny, these other laws are also unlikely to survive.  Indeed, even the dissenting Second Circuit judge (who argued that rational basis review is the proper standard to apply) conceded that “an affirmance by the Supreme Court of the majority’s view [applying intermediate scrutiny] would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.”    

That being the case, the reason this case also represents a half-step back is because, although the Second Circuit did apply intermediate scrutiny, the court came close to admitting that DOMA would survive under rational basis review, writing: “the existence of a rational basis for Section 3 of DOMA is closely argued. . . . [because there are] several justifications that alone or in tandem are said to constitute sufficient reason for the enactment[, including] . . . protection of the fisc, uniform administration of federal law . . . the protection of traditional marriage generally, and the encouragement of ‘responsible’ procreation.” 

This does not mean that, if the United States Supreme Court ultimately decides rational basis review is appropriate, the Court will also determine that Section 3 survives that scrutiny.  You’ll remember from a previous post that both the lower court in this case and the First Circuit Court of Appeals held the opposite—that is, that DOMA fails even rational basis review.  Still, the Second Circuit’s retreat from the holding in those two cases is unsettling.

As discussed in my last post, ideally, the Supreme Court will decide, like the Second Circuit did, that sexual orientation is a quasi-suspect class subject to intermediate scrutiny, and that it fails such scrutiny.  Then, not only will Section 3 of DOMA fall, so too are those laws preventing same-sex couples in all states from marrying likely to become a thing of the past.

The full text of the Second Circuit’s majority and dissenting opinions can be found here.


Event: The Impact of Healthcare Law on LGBT

The program will be held on Friday, October 12, 2012, in the ACBA Conference Center Auditorium, 920 City-County Bldg., 414 Grant Street, Pittsburgh PA, with registration and lunch from 11:30 AM – 12:00 Noon, followed by the presentations until 1:30 PM.

The presenters at the ACBA program will be:

  • Robert Wolf, Esq. (Advance Directives, POLST, Healthcare Decision Making) Tener, Van Kirk, Wolf & Moore, PC;
  • Elisabeth J. Poggi, Esq. (Advance Directives, POLST, Healthcare Decision Making) Buchanan Ingersoll & Rooney PC;
  • Sheryl Kashuba, Esq. (Hospital Visitation and Consent to Treatment for Minors) UPMC Health Plan;
  • Vikram Mangalmurti, Esq. (Accountable Care Act) VP Highmark Office of Healthcare Reform; and
  • Mark Phillis, Esq. (Family and Medical Leave Act) Littler Mendelson, PC

For ACBA members, the cost is $25, and for others, $60. Registrations can be made online through the ACBA.

Visit the PA Elder, Estate & Fiduciary Law Blog to learn more about this event.

Good news: Immigration & Same-Sex Partners

Foreigners who are same-sex partners of American citizens are now protected under an Obama administration policy suspending deportations of some immigrants who pose no security risk.

Click the link below to read the NY Times article on this subject.