By Deborah Goldman

In an overwhelming victory for activists, the United States Court of Appeals for the Second Circuit has declared crucial sections of the Defense of Marriage Act unconstitutional in its ruling in Windsor v. United States. [1, 2]. Particularly at issue was the Act’s defining marriage as “a legal union between one man and woman as husband and wife,” in which a spouse could only be “a person of the opposite sex.” [2, 3].

In its 2-1 decision, the Court addressed two primary questions: what level of scrutiny should apply in considering the rights of same-sex couples, and whether or not the Defense of Marriage Act stood to scrutiny. [2].

In determining what level of scrutiny should apply, the Court looked to four factors commonly used by the Supreme Court to designate a new class of persons as quasi-suspect. The list of factors considered include: whether there is a history of discrimination against the class, whether the class has a defining characteristic which impairs its ability to contribute to society, whether there is a distinguishing characteristic which defines the class as a discrete group, and whether the class is either a minority or politically powerless. [2 at *6]. On review, the Court held that all four factors indicated that same-sex persons are a quasi-suspect class, and thus subject to heightened, or intermediate, scrutiny. [1, 2].

The Court then turned to the second question, whether or not the Act stood up under intermediate scrutiny. To stand to intermediate scrutiny, a classification must “be substantially related to an important government interest.” [2 at *10]. That is, the reasons behind the classification must be “exceedingly persuasive,” and genuine, not “hypothesized or invented post hoc.” [2 at *10]. The justifications put forth by those defending the Act included “maintaining a uniform definition of marriage,” “protecting the fisc,” “preserving a traditional understanding of marriage,” and “encouraging responsible procreation.” [2 at *10-12].

In refuting the argument that the Act’s classification was important to maintain a uniform definition of marriage, the Court held that marriage rules are generally reserved to the states, and thus it is inappropriate here for a federal statute to intrude. [2 at *10]. The Court also held that the Act did not serve the purpose of preserving traditional understandings of marriage because history is not a substantially related to important government interest. [2 at *12]. Additionally, the Court found that the Act does not achieve its goal effectively as marriage rules are not federal, and thus the legislation was too far attenuated from its purported goal. [2 at *12].

The Second Circuit’s use of heightened scrutiny in this decision is critical. While it is not the first case to hold this section of DOMA unconstitutional, it is the first at this level to go as far as to define same-sex persons as a quasi-suspect class. In its decision in Massachusetts v. U.S. Department of Health and Human Services, the First Circuit declined to extend heightened scrutiny to same-sex couples, but instead used what they described as an intensified form of rational basis analysis. [4 at 10]. The Court there noted it was concerned about the implications of creating a new suspect class, including the overturning of marriage laws in a large number of states. [4 at 9]. However, it still found the Act in violation of equal protection law and thus held it to be unconstitutional.

Because of the split in rationale and scrutiny level between the First and Second Circuits, it it expected that parties will petition for certiorari. Because there is now a conflict between circuits, it is increasingly possible that the Supreme Court will hear the case. However, the Attorney General’s landmark decision to stop defending the Act may persuade them to deny certiorari at this time. [5]. The issue is still largely at play in the political arena, and the Supreme Court may ultimately determine that to be the best venue for resolution.



[2] Windsor v. United States, Nos. 12-2335-cv(L), 12-2435(Con), 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

[3] Defense of Marriage Act, 1 U.S.C. § 7 (1996).

[4] Massachusetts v. U.S. Dep’t of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012).