2nd Circuit holds Section 3 of the defense of marriage Act unconsitutional

A split panel of the United States Court of Appeals for the Second Circuit held Section 3 of the Defense of Marriage unconstitutional. The case, Windsor v United States, arose when the surviving member of a same sex marriage incurred higher federal estate taxes than the surviving member of a heterosexual marriage would have incurred. The 2 judge majority held that homosexuals are entitled to heightened scrutiny under the equal protection component of the 5th Amendment based on past discrimination and their inability to resist discriminatory treatment by the political majority. The panel majority rejected proffered defenses of the act that the federal government that the law was necessary to maintain a uniform definition of marriage, that it served the government’s interest of saving money and that it was necessary to encourage procreation. The dissenting judge argued that the United States Supreme Court’s dismissal of a 1971 challenge to Minnesota’s ban on same sex marriage for want of a substantial federal question decided the issue on the merits. Thus, there is no right to same sex marriage under the Constitution. Further, under rational basis review, the federal act easily survives based on the unique ability of heterosexual couples to procreate and the desire to create a uniform definition for federal programs. The opinions may be found here.

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