The U.S. Court of Appeals for the Second Circuit, in an opinion written by a prominent conservative jurist, Chief Judge Dennis Jacobs, just voted to strike down Section 3 of the Defense of Marriage Act (DOMA). The court issued its 2-1 decision just three weeks after hearing oral argument, which is extremely fast for a case of this complexity and importance….
UPDATE (11:55 AM): From Judge Jacobs’s opinion:
We conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional. Judge STRAUB dissents in part and concurs in part in a separate opinion.
Judge Chester Straub, 75, was appointed to the Second Circuit by President Clinton. But he has cast conservative votes before; for example, out of nine circuit judges to rule on the Partial-Birth Abortion Ban Act of 2003, he was the only one who voted to uphold the Act’s constitutionality.
Will Windsor become the vehicle for Supreme Court review of the Defense of Marriage Act? Considering that SCOTUS has not yet granted any of the DOMA petitions, and considering that the only other circuit court to rule on the case — the First Circuit — involves a potential recusal (stemming from then-Solicitor General Elena Kagan’s involvement in the litigation), Windsor seems like a good case to grant.
UPDATE (12:02 PM): Coming a few months after the Obamacare ruling, it’s another high-profile loss for former Solicitor General Paul Clement, one of the nation’s most talented Supreme Court advocates. When a lawyer as skilled as Paul Clement can’t successfully defend an act of Congress before the likes of Judge Michael Boudin (1st Cir.) and Judge Dennis Jacobs (2d Cir.), maybe it’s a sign that the law in question has some… issues?
UPDATE (12:05 PM): Speaking of issues, the Second Circuit’s website continues to experience them. You can access the opinion by clicking here instead.
UPDATE (12:10 PM): Here is commentary from Chris Geidner, who has been following the DOMA litigation quite closely. Comparing this ruling and the First Circuit’s ruling, Geidner notes:
[T]he Second Circuit held that laws that classify people based on sexual orientation, like DOMA, should be subjected to a heightened form of scrutiny when courts examine the government’s claimed reasons for such laws. The holding that “intermediate scrutiny” applies makes the Second Circuit the first federal appeals court to do so. The First Circuit did not apply any heightened scrutiny in its earlier decision striking down DOMA.
UPDATE (12:15 PM): It would appear that the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, has now lost at least six cases in a row — and spent about $1.5 million doing so.