Second Circuit’s DOMA Decision: A Road Map for SCOTUS?

Associated Press

On Thursday, the U.S. Court of Appeals for the Second Circuit shot down the Defense of Marriage Act's Section 3, which defines marriage as between a man and a woman. The decision followed a May ruling by the First Circuit striking down Section 3 as unconstitutional. But the Second Circuit ruling is a very different animal, and at least one legal scholar says it could provide the Supreme Court with a manual on how to knock down the law. The Supreme Court has been asked to review the First Circuit case, as well as a challenge to California’s Proposition 8, which bans gay marriage. By carving out gays and lesbians as a special class, the Second Circuit said courts must apply more scrutiny to laws affecting the group. Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush and darling of the Federalist Society, authored the majority opinion. He was joined by Judge Christopher F. Droney, an Obama appointee. Judge Chester Straub, a Clinton appointee dissented. As has been pointed out here and elsewhere, Judge Jacobs ruled that classifications based on sexual orientation should be subjected to heightened scrutiny by the federal bench. If the law isn't substantially related to an important government interest, it fails the test. (Whether he got it right is another matter. For arguments against, check out Ed Whalen's post at Bench Memos.) The First Circuit, in striking down DOMA, held that the government needed only show it had a rational basis. . .  

Source: http://blogs.wsj.com/law/2012/10/19/second-circuits-doma-decision-a-road-map-for-scotus/?mod=WSJBlog

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