Constitutionality of DOMA

“Jesus never said a word against homosexuality. In all of his teachings about multiple things - he never said that gay people should be condemned. I personally think it is very fine for gay people to be married in civil ceremonies.” -- Jimmy Carter

This past Thursday the Second Circuit Court of Appeals ruled that DOMA (the Defense of Marriage Act) is unconstitutional. This ruling was not all that surprising but the fact that the rule came from an extremely conservative judge, Chief Judge Dennis Jacobs, was surprising to many. Appointed by President George H. W. Bush, Judge Jacobs has ruled that corporations are immune to international human rights law, has argued that attorney’s produce “anti-social effects” when they provide free legal services to those who would otherwise not afford them, and when dissenting has refused to read the majority opinion as a sign of contempt. 

The statements he made ruling DOMA unconstitutional came as a shock to many; he argued for a higher scrutiny when deciding DOMA’s constitutionality, the standard currently used when determining discrimination against sexual minorities is “rational” or “intermediate” basis review. When using a “rational basis review”, many states have found discriminatory laws rational under their current system. In states, such as California, where a higher level of scrutiny has been employed, bans against same-sex marriage have been invalidated. The court has adopted four factors that determine if a group should receive heightened scrutiny. 

1: whether the class has been historically subjected to discrimination

2: whether the class has a characteristic that bears a relation to its ability to perform or contribute to society

3: whether the class exhibits obvious, immutable or distinguishing characteristics that define them as a discrete group

4: whether the class is a minority or politically powerless

As Judge Jacobs argued in his opinion, “homosexuals as a group have historically endured persecution and discrimination,” homosexuality does not inhibit one from contributing to society,  and “are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public”. In satisfying these factors, the court found a justification for heightened scrutiny. Along with this scrutiny, Jacobs argues any law that discriminates against homosexuals should be treated with “exceedingly persuasive” justification, the same justification used in discrimination against women. 

What does this mean exactly? Frankly, government discrimination against gays would be unconstitutional. The Court of Appeals argued that DOMA was not the right vehicle to be used in  preserving tradition, a goal in which the actual importance has come into question. The government should not refuse recognition of same-sex couples on the claim that family roles and the raising of children diminish when parents are of the same sex. Having such a conservative judge write the opinion on such a case is leaving many to assume the Supreme Court will rule the same way...we can only hope this is the case.