Friday, October 19, 2012

Another Federal Appeals Court Strikes Down DOMA: Discrimination Requires "Exceedingly Persuasive" Justification

Yesterday's big news on the gay rights front: yet another federal appeals court has struck down the federal Defense of Marriage Act (DOMA).  The federal appeals court for Manhattan's 2nd Circuit follows the precedent of a federal appeals court last year in Boston.  The majority opinion in yesterday's ruling was written by Judge Dennis Jacobs, a very conservative H.W. Bush appointee.  

As Ian Milhiser notes at Think Progress, 

This is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

At his Daily Dish site, Andrew Sullivan provides helpful excerpts from other commentators, including Richard Socarides in The New Yorker, Julie Bolger for The Advocate, and Scott Lemieux in The American Prospect.  As Milhiser notes, and each of the preceding commentators underscores, what makes yesterday's decision a "really big deal" is that it strongly uncovers the prejudicial intent of DOMA as it insists that a decision by the federal government to discriminate against a minority group requires an "exceedingly persuasive" justification for the discrimination.

When no such persuasive justification can be found for governmental discrimination, what you're left with is, well, simply raw discrimination.  And that's rather hard to justify in a society whose foundational documents guarantee equal justice and liberty to all citizens.  Period.  

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