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Washington, D.C. — ThinkProgress today released “BREAKING: Federal Appeals Court Strikes Down DOMA In Opinion By Republican-Appointed Judge,” commenting on conservative Chief Judge Dennis Jacobs’s decision to author an opinion striking down the unconstitutional Defense of Marriage Act. Even more significantly, Chief Judge Jacobs’s opinion concludes that any law that discriminates against gay men and lesbians should be treated very skeptically under our Constitution.
In the opinion, Chief Judge Jacobs—known for declaring corporations immune to international human rights law and decrying the “anti-social effects” of attorneys providing free legal services to the less fortunate—wrote that the Defense of Marriage Act imposes unique and unconstitutional burdens on gay couples and, further, that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification:
[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
If the Supreme Court adopts Jacobs’s reasoning, 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 the Supreme Court will ultimately strike down the Defense of Marriage Act.
One unfortunate caveat is necessary: Judge Chester Straub, a Clinton appointee, dissented. Nevertheless, this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.
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