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Federal Court Strikes Down Defense of Marriage Act
In one of the most important gay rights cases ever decided, a federal appeals court in
Enacted in 1996, the Defense of Marriage Act (DOMA) defines marriage as one-man/one-woman. This means that same-sex couples do not gain the same financial benefits as heterosexual marriages. For the plaintiff in Windsor v. United States, this meant that, when her partner died, she was denied the spousal deduction for federal estate taxes in the amount of $363,000. She sued in federal court, challenging the constitutionality of DOMA under the Equal Protection Clause of the United States Constitution. The Second Circuit Court of Appeals agreed with her and DOMA was struck down.
Like many ground-breaking court decisions, the
While federal tax law allows the surviving spouse to avoid estate taxes, DOMA does not apply to same-sex couples. Although Edie and Thea were married in
The Equal Protection Clause
Enacted in 1868 in the aftermath of the Civil War, the Equal Protection Clause is part of the Fourteenth Amendment. Like most constitutional provisions, the Equal Protection Clause is brief: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” However, although the clause is phrased as an absolute, the courts have not interpreted it that way. Most laws do not violate the Equal Protection Clause so long as the legislature had any reasonable or conceivable basis to pass the law, even if it distinguishes between different classes of people and even if the law is a bad idea. All laws favor someone or something over something else, so, in most cases, “rational basis” review means the legislature can do what it pleases. Economic legislation that favors one class of individuals over another is almost always constitutional under the Equal Protection Clause.
Courts treat equal protection claims differently based on the nature of the discrimination or unequal treatment. One of the reasons the Supreme Court gives the government much leeway in treating people differently under the Equal Protection Clause is that, under American democratic principles, majority rules. In 1973, for example, the Supreme Court held that laws that discriminate against the poor do not violate the Constitution. But the courts have also identified certain classes that are protected from discrimination under the Constitution. Majority rule cannot always proceed unfettered. A counter-majoritarian principle courses through constitutional law in certain cases.
The Supreme Court began to affirmatively protect certain groups under the Equal Protection Clause in 1938. The Court in United States v. Caroline Products said that, “[P]rejudice against discrete and insular minorities may be a special condition, which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” In other words, “discrete and insular minorities” are protected from government-sponsored discrimination under the Constitution.
As noted above, the poor do not gain special protection under the Constitution. But the Supreme Court quickly applied the “discrete and insular minorities” standard to African Americans and others who suffered discrimination on the basis of national origin. It is now a settled constitutional principle that discrimination on the basis of race or national origin cannot be justified without a compelling government interest. That compelling interest must be accomplished through the least restrictive means possible. Since the courts closely scrutinize this kind of discrimination to ensure that it satisfies constitutional standards, courts call this the “strict scrutiny” test. Under strict scrutiny, nearly all government-sponsored discrimination on the basis of race or national origin is unconstitutional. An example of strict scrutiny in striking down a racist law was in Loving v. Virginia, when the Supreme Court, in 1967, held that a prohibition against inter-racial marriage was unconstitutional.
As there was no compelling reason to prohibit blacks from marrying whites, the
In the 1970s, the Supreme Court added an important wrinkle to its equal protection jurisprudence. Recognizing in 1973 that “our Nation has had a long and unfortunate history of sex discrimination,” the Court ruled three years later that government-sponsored discrimination against women is reviewed under “intermediate scrutiny.” Under this level of court review, gender discrimination is constitutional only if the government can show that the discrimination is substantially related to an important government interest. Intermediate scrutiny is less predictable or rigid than strict scrutiny and it grants the government more flexibility in regulating differences between men and women based on, for example, physical strength. On the other hand, stereotypes about women will not survive constitutional review, and it is also no justification that a challenged policy is longstanding, i.e., “we’ve always done it this way.” Rather, the government needs an “exceedingly persuasive justification” for discriminating against women. A recent example of the Court’s application of intermediate scrutiny was United States v. Virginia, when the Court in 1996 held that the Virginia Military Institute’s sex-based admission violated the Constitution even though the state had proposed a parallel school for women.
Protecting Gays and Lesbians
What’s the standard of review for discrimination against gays and lesbians? The Supreme Court has never taken on that issue. For years, discrimination on the basis of sexual orientation was not accorded any degree of heightened court scrutiny under the Constitution and for that reason gays and lesbians were not deemed a suspect class under the Equal Protection Clause. That meant that governmental discrimination on the basis of sexual orientation was usually legal. However, on October 18, 2012, the Second Circuit Court of Appeals—one level below the Supreme Court—surprised the legal community in finding that discrimination on the basis of sexual orientation should not be reviewed under the lenient rational basis review but, instead, the same intermediate scrutiny that governs review of gender discrimination claims. Gays and lesbians are now a quasi-suspect class under the Constitution. This is significant, and it makes Windsor v. United States one of the most important legal developments in the march toward equality. Under this ruling, gays and lesbians have new protections against discrimination.
A ruling like this was unthinkable a generation ago. Even more surprising, Windsor was written by one of the most conservative judges on the Court of Appeals, Dennis Jacobs, who in 2008 criticized pro bono litigation, stating that, “we should as a profession consider dispassionately whether some public interest litigation has become an anti-social influence, whether the promotion of social and political agendas in the courts is in any real sense a service to the public, and whether the public interest would be best served by initiatives to abate somewhat the power of judges and lawyers and the legal profession as an interest group.”
In reviewing the constitutionality of the Defense of Marriage Act, Judge Jacobs noted that, “the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged.” But under the counter-majoritarian principle that governs heightened judicial scrutiny under the Equal Protection Clause, the fact that DOMA had bi-partisan support and reflects long-held principles does not matter.
The Second Circuit summarized the multi-part test for determining whether a class of people are entitled to heightened judicial review when they claim discrimination under the Equal Protection Clause: “The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically ‘subjected to discrimination’; B) whether the class has a defining characteristic that ‘frequently bears [a] relation to ability to perform or contribute to society’; C) whether the class exhibits ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group’; and D) whether the class is ‘a minority or politically powerless.’”
Under this multi-part standard, gays and lesbians satisfy this test and are quasi-suspect classes in the Second Circuit, which means that discrimination against gays and lesbians are easier to challenge in court. The Court of Appeals concludes: “In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”
The first factor is not a close call for the Court of Appeals. “It is easy to conclude that homosexuals have suffered a history of discrimination.... Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal.” True, it was not until 2003 that the Supreme Court said that laws prohibiting gay sex violate the Constitution and that such laws “demean” the existence of same-sex couples and “controlled their destiny.” In addition, under the second factor, “homosexuality bears no relation to any ability to perform or contribute to society.” The court added, “There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance.” Under the third factor, the Court finds that “homosexuality is a sufficiently discernible characteristic to define a discrete minority class.” In other words, “The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but ...there is nothing amorphous, capricious, or tentative about their sexual orientation.” Finally, under the fourth factor, gays and lesbians do not have the political power to insulate themselves from discrimination. “It is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private, which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.”
Now that the Court of Appeals has decided that discrimination against same-sex couples is reviewed under heightened judicial scrutiny, the reasons offered in defense of DOMA’s spousal-benefits law are not good enough to save the statute, and the court strikes it down. These reasons include: (1) the need to maintain a uniform definition of marriage; (2) protecting the public fisc and (3) preserving the traditional definition of marriage. Saving money and promoting long-held social views are not enough to satisfy heightened judicial review under the Equal Protection Clause. As to the third factor, “tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws.” The Court also says that it’s no justification to say that Congress wanted to encourage responsible procreation (an argument that many states have made in justifying the prohibition against same-sex marriage). “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.”
Next Stop: Supreme Court
The trend in favor of gay rights over the last 20 years includes two prominent Supreme Court cases: its ruling in Romer v. Evans (1996) that struck down a voter initiative that prohibited the state of
Yet, while these developments have advanced gay rights at the state level, few courts have rejected federal restrictions against gay rights. The Second Circuit is not the first federal court to strike down DOMA. On May 31, 2012, a federal appeals court in
Stephen Bergstein is a lawyer in upstate
Z Magazine Archive
AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: email@example.com; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
Contact: PNLHA, 27920 68th Ave. East, Graham, WA 98338; 206-406-2604; PNLHA1@aol.com; http://www3.telus.net.
MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: firstname.lastname@example.org; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
Contact: WisCon, ? SF3, PO Box 1624, Madison, WI 53701; email@example.com; http://www.wiscon.info/.
ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
Contact: SWCHRS, 3200 Marshall Avenue, Suite 290, Norman, OK 73072; 405-325-3694; firstname.lastname@example.org; www.ncore.ou.edu.
MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
RADIO - The 38th Annual Community Radio Conference is schedule for May 29-June 1, in San Francisco, CA, with discussions and workshops.
Contact: 1101 Pennsylvania Ave. NW, Suite 600, Washington, DC 20004; 202-756-2268; email@example.com; http://www.nfcb.org/.
BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
Contact: Bikes Not Bombs, 284 Amory St., Jamaica Plain, MA 02130; 617-522-0222; firstname.lastname@example.org; www.bikesnotbombs.org.
LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
Contact: 365 Fifth Avenue, CUNY Graduated Center, ? Sociology Dept., New York, NY 10016; http://www.leftforum.org/.
VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
Contact: 122 State Street, Suite 405 B, Madison, WI 53701; email@example.com; http://veganfest.org/.
ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; firstname.lastname@example.org http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
Contact: email@example.com; http://www.globaljusticecenter.org/.
NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
Contact: 164 Robles Way, #276, Vallejo, CA 94591; firstname.lastname@example.org; http://www.netrootsnation.org/.
MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
Contact: email@example.com; http://www.socialismconference.org.
LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; firstname.lastname@example.org; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
Contact: email@example.com; http://www.childrensdefense.org.
ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
Contact: firstname.lastname@example.org; http://yeacamp.org/.
LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
Contact: NCLR Headquarters Office, Raul Yzaguirre Building, 1126 16th Street, NW, Washington, DC 20036; 202-785-1670; www.nclr.org.
LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
Contact: email@example.com; http://east.usworker.coop/.
WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
Contact: 747 Polk Street, San Francisco, CA 94109; 415-864-1278; RadicalWomenUS@gmail.com; http://lynnestewart.org/; http://www.radicalwomen.org/.
HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
Contact: 121 West 27th Street, #301, New York, NY 10001; 212-627-0444; firstname.lastname@example.org; http://www.madre.org.
SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
Contact: http://www.falconridgefolk.com/; email@example.com.
WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
Contact: 339 Lafayette Street, New York, NY 10012; 212-228-0450; firstname.lastname@example.org; http://www.warresisters.org.
POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
Contact: Center for Popular Economics, PO Box 785 Amherst, MA 01004; 413-545-0743; email@example.com; www.populareconomics.org.
VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: firstname.lastname@example.org; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
Contact: email@example.com; http://occupynationalgathering.net/.
COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; firstname.lastname@example.org; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.