For the second time this year, a federal appeals court has deemed that the Defense of Marriage Act is 
unconstitutional. Today the 2nd U.S. Circuit Court of Appeals in New York ruled that the 1996 law barring federal recognition of same-sex marriages is in violation of the Fourteenth Amendment to the Constitution that guarantees equal protection under the law.
In June the U.S. Court of Appeals for the 1st Circuit in Boston handed down a similar ruling in a separate case.
The latest decision comes from a lawsuit filed by 83-year-old Edith Windsor. When Windsor’s wife, Thea Clara Spyer, died in 2009, Windsor had to pay $363,000 in federal estate taxes that she would not have owed had the government recognized her marriage. The couple had been married in Canada in 2007 after a forty year engagement, and their marriage was recognized by New York state.
A district court ruled in favor of Windsor, who is receiving legal assistance from the American Civil Liberties Union. While the Obama administration last year said it would not defend the DOMA law in court, Republicans in Congress picked up the ball and appointed a group to appeal.
The Republican-appointed group argued, among other reasons, that DOMA should be considered constitutional because it encourages procreation. However, the judges weren’t buying it. In fact, they said, LGBT-identifying people should get more protection under the law, not less.
“Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public,” Judge Dennis Jacobs wrote in what was a 2-1 decision.
The dissenting judge said he did not want to interfere in a political argument, writing, “If this understanding [of marriage] is to be changed, I believe it is for the American people to do so.”
The Windsor case or others challenging the Defense of Marriage Act could soon find themselves in front of the U.S. Supreme Court for a final decision on the constitutionality of the law.
