"The panel majority ultimately determined—in conflict with eleven other circuits—that heightened scrutiny applies to classifications based on sexual orientation," Clement says. "The panel majority acknowledged that homosexuals 'clearly have' attained 'political successes over the years,' but deemed they cannot 'adequately protect themselves from the discriminatory wishes of the majoritarian public."
In fact, Clement argues, "gays and lesbians have substantial political power, which has grown exponentially with each election cycle."
The attorney praises Straub's dissent for noting that the challenge in Baker was essentially the same as in Windsor, for stating that existing precedent requires rational-basis review to sexual-orientation classifications, and for asserting that DOMA easily survives that review.
Clement stresses that states have traditionally defined marriage and argues that there is nothing wrong with the federal government, as a separate sovereign, choosing to adopt one of those definitions.
At the least, he says, the circuit should have asked New York's highest court to clarify the issue.
Instead, "The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had 'signaled its disinclination'" to decide the issue in Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009).
Clement faults the circuit for finding it "suspicious" that Congress, while legitimately concerned with uniformity in federal marriage benefits, "would attempt to define the word 'marriage' when it had traditionally deferred to the states."
He takes issue with the circuit for agreeing that promoting procreation can be an important government objective, but finding that DOMA does not further that objective.
"Thus, although it acknowledged 'that same-sex marriage is unknown in history and tradition,' the panel majority nonetheless invalidated DOMA," he says.
Jones had rejected DOMA even after finding that distinction between heterosexual and homosexual married couples should be scrutinized for a rational basis.
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MIchael
This is the perfect distraction. Focus on 'deifning marriage' while the President signed the NDAA (allowing him to unilaterally declare folks 'domesitc terrorists' and thereby indefinitely detain them without criminal charges). Ignore the fact that Obama has kept the Bush/Cheney era 'defenses' in a plethora of lawsuits that simply ask for the 'evidence' concerning 9/11, the Iraq War and the pseudo-War on Terror. This is a smoke screen. Focus on what is essentially a 'no brainer'. (Seriously, who can state with a straight face that 'not allowing certain people to marry' is somehow constitutional and non-discriminatory??) while our Bill of Rights continues to be whittled down. Soon, the Preamble will only contain a Bill....and we know who they will get to pay that bill. We need electorally enforced term limits...every election year, VOTE OUT ALL INCUMBENTS. These paid-spokespeople we call "Representatives, Senators, Supreme Court Justices and Presidents' cater to the elite, are controlled by the money printers, and are unapologetically screwing the working-class/poor, while touting and claiming to 'tax the rich'. Priorities people...defend marriage's definition, or defend our right to NOT have 'drones' murder us, our children and our siblings, ALL WITHOUT ARREST, CHARGE, ARRAIGNMENT, TRIAL OR CONVICTIOn.
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Gavern
What a convoluted load of legal rubbish. They forget that this is about the Federal rights which must be granted to ALL people regardless of who they are, who they marry, what color, sex or orientation they are. DOMA is as un-American as it gets. Discrimination on the basis of what the federal government deems as what marriage entitlement means is completely unacceptable in this day and age. Instead of eating the millions of dollars defending this stupidly called law and continuing to hurt so many people, these idiots need to have their heads reexamined and their hearts reinstalled. The amount of time and money that has been wasted on 'Defending Doma' is simply reductive and inhumanly disgraceful. Nearly every 1st world nation already gives 'Federal rights' to same sex couples, even if they call it Permanent partners or common law spouses etc this a F all to do with the religious definition of marriage and everything to do with the FEDERAL definition of marriage which governs just about every tax, immigration, and licensing law their is regardless of whether same sex marriage is legal or not in any state. I thought America was so proud to call itself the land of equality? I don't see a little * at the bottom that says 'except if you are gay or married to someone who happens to have the same physical parts as you'. Doma doesn't have a leg to stand on will be history very shortly.
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