"The panel majority ultimately determinedin conflict with eleven other circuitsthat 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.