Appeals Court Strikes Down DOMA's Marriage Definition
Same-sex marriage took one more step in its inevitable trip to the Supreme Court yesterday. A divided panel of the Second Circuit ruled that Section 3 of the federal Defense of Marriage Act, which defines “marriage” for purposes of provisions of federal law as “only a legal union between one man and one woman as husband and wife,” “violates equal protection.” The case is Windsor v. United States.
I have long been skeptical of Section 3 on Tenth Amendment grounds. I think that states have the right to define marriage as they see fit, and I'm concerned about a federal law that uses the power of federal benefits to force states' hands (on this point, I respectfully disagree with Ed Whelan, who cogently sums up his position in his analysis of Windsor at NRO).
The problem with Windsor is that the Court does not rely on the Tenth Amendment, it relies on the Equal Protection Clause. If DOMA is a violation of equal protection, then it would be equally unconstitutional for states to define marriage as the union of one man and one woman. Decisions like this (and of course Judge Vaughn Walker's decision on Prop 8) distort the Constitution by imposing on the nation a newfangled "right" to gay marriage.
The majority opinion in Windsor holds that DOMA must be subjected to heightened scrutiny because homosexuals “are a politically powerless minority.” So powerless, I suppose, that the President refused to incur their wrath by defending DOMA in court.
But even under heightened scrutiny, laws will be upheld provided they incur a significant government interest (the court here employed so-called "intermediate scrutiny"). As Whelan points out in his analysis, the majority "breezily concludes that section 3 of DOMA doesn’t advance the goal of encouraging responsible procreation." If that conclusion becomes embedded in our constitutional law, democratically-enacted marriage laws in the vast majority of states will have to be cast aside.