The Defense of Marriage Act (DOMA), the statute that prohibits the federal government from recognizing same-sex marriages, suffered another blow when the Second Circuit Court of Appeals declared Section 3 of the act unconstitutional in a 2-1 decision. In striking down DOMA, Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush, applied "intermediate scrutiny" in finding that homosexuals are a class historically subject to discrimination and with little political power to defend themselves against the majority, and that DOMA's "classification of same-sex spouses is not substantially related to an important government interest." Further, the court did not consider DOMA's interest in protecting "traditional (i.e., opposite-sex) marriage" as a civil institution:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
With two federal appeals courts now on record striking down DOMA, it is probably only a matter of time when the Supreme Court gets the final say.
The case is Windsor v. U.S., (2d Cir. Oct. 18, 2012).
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