In dissent, Judge Chester Straub argued that if the historical understanding of marriage in the United States was to be changed, 'I believe it is for the American people to do so.'

The majority first held that Windsor had standing to sue because 'we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless' have recognized her marriage, making Windsor 'a surviving spouse under New York law.'

Second, the majority said Windsor's suit was not foreclosed by the U.S. Supreme Court case of Baker v. Nelson, 409 U.S. 810 (1971), which Jacobs said 'held that the use of the traditional definition of marriage for a state's own regulation of marriage status did not violate equal protection.'

Finally, the court upheld the result reached in Windsor by Southern District Judge Barbara Jones in June ' but not on the same rationale. Jones found '3 failed to pass muster under the least exacting level of review for discriminatory legislation ' 'rational basis' review. (See, 'Judge Finds DOMA Discriminates Against Married Same-Sex Couples,” NYLJ, June 7).

The Second Circuit looked at the history of discrimination against gays and lesbians, their relative lack of political power and other factors in finding that 'intermediate scrutiny' applies, finding that the law nonetheless 'does not withstand that review.'

Spyer and Windsor, now 83, were married in Canada in 2007 in a union that was later recognized by the New York state. When Spyer died in 2009, she left everything to Windsor, who was forced to pay $353,000 in estate taxes.

Windsor sued in the Southern District, one of several challenges launched against DOMA in federal courts.

Midway through the lawsuit before Jones, the Obama administration notified Congress in 2011 it would no longer defend '3 in court because the exclusion of same-sex couples was a suspect classification that could not withstand the highest possible standard of review ' strict scrutiny.

The Executive Branch's about-face led a 3-2 Republican majority of the House of Representative's Bipartisan Legal Advisory Group (BLAG) to vote to defend the law itself.

The change of position left the United States as a nominal defendant, so when Jones ruled in June that DOMA was unconstitutional as a violation of equal protection, and the case went to the Second Circuit, BLAG lawyer Paul Clement of Bancroft argued that the United States should not be allowed to argue in support of Jones' decision. (See, “Second Circuit Hears Arguments on Constitutionality of DOM,” NYLJ, Sept. 28). Bancroft did not return a call for comment.

'Beautiful Decision'

Clement was opposed by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, who, along with James Esseks of the American Civil Liberties Union, led the legal team for Windsor.

'It's a beautiful decision,' Kaplan said of the circuit ruling. 'The most significant thing obviously, in addition to the wonderful result, is that it's the first circuit court decision to hold that classifying people on the basis of sexual orientation is subject to intermediate scrutiny.'

U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, who supports a measure called the Respect for Marriage Act to repeal DOMA, welcomed the decision.

'This latest court decision by the Second Circuit Court of Appeals echoes testimony heard during a historic hearing before the Judiciary Committee last year: DOMA has damaging effects on the lives of thousands of American families, who are denied the same federal protections as millions of other Americans,' Leahy said in a statement. 'I expect in the coming months, the Supreme Court will take up this issue, and I hope they will agree with all of these lower courts that the law is unconstitutional.'

New York Attorney General Eric Schneiderman, New York City Mayor Michael Bloomberg and City Council Speaker Christine Quinn, the New York State Bar Association and the New York City Bar also issued statements hailing the decision.

However, Brian Brown, president of the National Organization for Marriage, assailed the ruling.

'This is yet another example of judicial activism and elite judges imposing their views on the American people, and further demonstrates why it is imperative for the U.S. Supreme Court to grant review in the currently pending DOMA cases as well as to the Proposition 8 [the California ballot initiative that overturned same-sex marriage] case,' he said in a statement. 'The American people are entitled to a definitive ruling in support of marriage as the union of one man and one woman, as 32 states have determined through popular vote.'

The next step is to await an announcement from the Supreme Court on whether it will take up the Windsor case as well as the First Circuit decision, in Massachusetts v. U.S. Dept. of HHS, 682 F.3d 1 (1st Cir.), which struck down '3 on the basis of what Kaplan called 'rational basis review with bite' ' as well as two district court cases striking down the section out of Connecticut and California.

Lambda Legal, which submitted an amicus brief in Windsor and represented the successful plaintiff in the California case, Golinski v. OPM, issued a statement praising the heightened scrutiny applied by the Second Circuit saying, 'It won't be long before this bad law is gone for good.'

Straub issued a 40-page dissent in which he said 'Baker dictates my decision.'

'Forty years ago, the United States Supreme Court was presented with the essentially identical challenge we have here,' he said. 'The then DOMA-like Minnesota law was upheld in that state's highest court because it found that the right to marry without regard to sex was not a fundamental right and the law's thrust was not irrational or invidious discrimination.'

Straub concurred with the majority on two points, the first of which was presented by the unusual procedural posture of the case.

He agreed with the majority in denying BLAG's motion to dismiss the United States from the appeal. He also agreed with the majority in denying Clement's request to certify to the New York Court of Appeals the question of whether the state would have recognized the Windsor/Spyer union in 2009 ' before the state legalized same-sex marriages in 2011.

In the majority opinion, Jacobs acknowledged that 'the existence of rational basis for Section 3 of DOMA is closely argued.'

He said BLAG and its amici argued 'several justifications that alone or in tandem are said to constitute sufficient reason for the enactment,' including protecting the fisc, uniform administration of the federal laws given the split among states on same-sex marriage, the protection of 'traditional marriage' and the 'encouragement of 'responsible' procreation.'

While 'Windsor and her amici vigorously argue that DOMA is not rationally related to any of these goals,' he said, a party 'urging the absence of any rational basis takes up a heavy load.'

'That would seem to be true in this case ' the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has a varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged,' Jacobs said.

Nonetheless, 'no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case,' Jacobs said, as he and Droney parted company with Straub's belief that rational basis review was warranted and the law survived that review.

Jacobs ticked off the factors that the Supreme Court has used to determine whether there is a suspect classification warranting scrutiny 'heightened' above rational basis review.

'It is easy to conclude that homosexuals have suffered a history of discrimination,' and just as easy to conclude that the 'aversion homosexuals experience has nothing to do with aptitude of performance,' Jacobs said.

He then held that 'homosexuality is a sufficiently discernible characteristic to define a discrete minority class.'

Jacobs then turned to another factor applied by the Supreme Court ' whether homosexuals are a politically powerless minority. He answered that question in the affirmative.

'The question is not whether homosexuals have achieved political successes over the years; they clearly have,' he said. 'The question is whether they have the strength to politically protect themselves from wrongful discrimination.'

Having concluded that intermediate scrutiny applied and not rational basis review, Jacobs turned to the justifications offered by BLAG.

'To the extent that there has ever been 'uniform' or 'consistent' rule in federal law concerning marriage, it is that marriage is 'a virtually exclusive province of the states',' he said, and the fact that DOMA was an 'unprecedented intrusion' into an area traditionally regulated by the states 'is a reason to look upon Section 3 of DOMA with a cold eye.'

'Moreover, DOMA's sweep arguably creates more discord and anomaly than uniformity, as many amici observe,' and DOMA is 'not substantially related to fiscal matters.'

As for preserving 'traditional marriage,' he said, 'A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest.'

'Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws,' he said, adding later, 'Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it.'

BLAG's final justification for '3, encouraging responsible child rearing, fared no better, as the circuit agreed that 'promotion of procreation can be an important government objective' but the court was at pains to see 'how DOMA is substantially related to it.'

The 'proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way,' Jacobs said.

A divided U.S. Court of Appeals for the Second Circuit yesterday held in Windsor v. United States, 12-2335-cv, that a federal law defining marriage as solely between one man and one woman violates the U.S. Constitution's guarantee of equal protection under the law.

In an appeal resolved just three weeks after oral argument, Judges Dennis Jacobs and Christopher Droney held that the definition of 'marriage' in '3 of the Defense of Marriage Act violates the rights of Edith Schlain Windsor because it bars the Internal Revenue Service from recognizing her as the spouse of the late Thea Spyer for purposes of the marriage exemption from the estate tax.

Moreover, the 43-page majority decision went further than either the U.S. District Court for the Southern District or the First Circuit in Boston, which both ruled against the law, by subjecting the definition to a more exacting standard of review.

In dissent, Judge Chester Straub argued that if the historical understanding of marriage in the United States was to be changed, 'I believe it is for the American people to do so.'

The majority first held that Windsor had standing to sue because 'we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless' have recognized her marriage, making Windsor 'a surviving spouse under New York law.'

Second, the majority said Windsor's suit was not foreclosed by the U.S. Supreme Court case of Baker v. Nelson , 409 U.S. 810 (1971), which Jacobs said 'held that the use of the traditional definition of marriage for a state's own regulation of marriage status did not violate equal protection.'

Finally, the court upheld the result reached in Windsor by Southern District Judge Barbara Jones in June ' but not on the same rationale. Jones found '3 failed to pass muster under the least exacting level of review for discriminatory legislation ' 'rational basis' review. (See, 'Judge Finds DOMA Discriminates Against Married Same-Sex Couples,” NYLJ, June 7).

The Second Circuit looked at the history of discrimination against gays and lesbians, their relative lack of political power and other factors in finding that 'intermediate scrutiny' applies, finding that the law nonetheless 'does not withstand that review.'

Spyer and Windsor, now 83, were married in Canada in 2007 in a union that was later recognized by the New York state. When Spyer died in 2009, she left everything to Windsor, who was forced to pay $353,000 in estate taxes.

Windsor sued in the Southern District, one of several challenges launched against DOMA in federal courts.

Midway through the lawsuit before Jones, the Obama administration notified Congress in 2011 it would no longer defend '3 in court because the exclusion of same-sex couples was a suspect classification that could not withstand the highest possible standard of review ' strict scrutiny.

The Executive Branch's about-face led a 3-2 Republican majority of the House of Representative's Bipartisan Legal Advisory Group (BLAG) to vote to defend the law itself.

The change of position left the United States as a nominal defendant, so when Jones ruled in June that DOMA was unconstitutional as a violation of equal protection, and the case went to the Second Circuit, BLAG lawyer Paul Clement of Bancroft argued that the United States should not be allowed to argue in support of Jones' decision. (See, “Second Circuit Hears Arguments on Constitutionality of DOM,” NYLJ, Sept. 28). Bancroft did not return a call for comment.

'Beautiful Decision'

Clement was opposed by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, who, along with James Esseks of the American Civil Liberties Union, led the legal team for Windsor.

'It's a beautiful decision,' Kaplan said of the circuit ruling. 'The most significant thing obviously, in addition to the wonderful result, is that it's the first circuit court decision to hold that classifying people on the basis of sexual orientation is subject to intermediate scrutiny.'

U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, who supports a measure called the Respect for Marriage Act to repeal DOMA, welcomed the decision.

'This latest court decision by the Second Circuit Court of Appeals echoes testimony heard during a historic hearing before the Judiciary Committee last year: DOMA has damaging effects on the lives of thousands of American families, who are denied the same federal protections as millions of other Americans,' Leahy said in a statement. 'I expect in the coming months, the Supreme Court will take up this issue, and I hope they will agree with all of these lower courts that the law is unconstitutional.'

New York Attorney General Eric Schneiderman, New York City Mayor Michael Bloomberg and City Council Speaker Christine Quinn, the New York State Bar Association and the New York City Bar also issued statements hailing the decision.

However, Brian Brown, president of the National Organization for Marriage, assailed the ruling.

'This is yet another example of judicial activism and elite judges imposing their views on the American people, and further demonstrates why it is imperative for the U.S. Supreme Court to grant review in the currently pending DOMA cases as well as to the Proposition 8 [the California ballot initiative that overturned same-sex marriage] case,' he said in a statement. 'The American people are entitled to a definitive ruling in support of marriage as the union of one man and one woman, as 32 states have determined through popular vote.'

The next step is to await an announcement from the Supreme Court on whether it will take up the Windsor case as well as the First Circuit decision, in Massachusetts v. U.S. Dept. of HHS , 682 F.3d 1 (1st Cir.), which struck down '3 on the basis of what Kaplan called 'rational basis review with bite' ' as well as two district court cases striking down the section out of Connecticut and California.

Lambda Legal, which submitted an amicus brief in Windsor and represented the successful plaintiff in the California case, Golinski v. OPM, issued a statement praising the heightened scrutiny applied by the Second Circuit saying, 'It won't be long before this bad law is gone for good.'

Straub issued a 40-page dissent in which he said 'Baker dictates my decision.'

'Forty years ago, the United States Supreme Court was presented with the essentially identical challenge we have here,' he said. 'The then DOMA-like Minnesota law was upheld in that state's highest court because it found that the right to marry without regard to sex was not a fundamental right and the law's thrust was not irrational or invidious discrimination.'

Straub concurred with the majority on two points, the first of which was presented by the unusual procedural posture of the case.

He agreed with the majority in denying BLAG's motion to dismiss the United States from the appeal. He also agreed with the majority in denying Clement's request to certify to the New York Court of Appeals the question of whether the state would have recognized the Windsor/Spyer union in 2009 ' before the state legalized same-sex marriages in 2011.

In the majority opinion, Jacobs acknowledged that 'the existence of rational basis for Section 3 of DOMA is closely argued.'

He said BLAG and its amici argued 'several justifications that alone or in tandem are said to constitute sufficient reason for the enactment,' including protecting the fisc, uniform administration of the federal laws given the split among states on same-sex marriage, the protection of 'traditional marriage' and the 'encouragement of 'responsible' procreation.'

While 'Windsor and her amici vigorously argue that DOMA is not rationally related to any of these goals,' he said, a party 'urging the absence of any rational basis takes up a heavy load.'

'That would seem to be true in this case ' the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has a varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged,' Jacobs said.

Nonetheless, 'no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case,' Jacobs said, as he and Droney parted company with Straub's belief that rational basis review was warranted and the law survived that review.

Jacobs ticked off the factors that the Supreme Court has used to determine whether there is a suspect classification warranting scrutiny 'heightened' above rational basis review.

'It is easy to conclude that homosexuals have suffered a history of discrimination,' and just as easy to conclude that the 'aversion homosexuals experience has nothing to do with aptitude of performance,' Jacobs said.

He then held that 'homosexuality is a sufficiently discernible characteristic to define a discrete minority class.'

Jacobs then turned to another factor applied by the Supreme Court ' whether homosexuals are a politically powerless minority. He answered that question in the affirmative.

'The question is not whether homosexuals have achieved political successes over the years; they clearly have,' he said. 'The question is whether they have the strength to politically protect themselves from wrongful discrimination.'

Having concluded that intermediate scrutiny applied and not rational basis review, Jacobs turned to the justifications offered by BLAG.

'To the extent that there has ever been 'uniform' or 'consistent' rule in federal law concerning marriage, it is that marriage is 'a virtually exclusive province of the states',' he said, and the fact that DOMA was an 'unprecedented intrusion' into an area traditionally regulated by the states 'is a reason to look upon Section 3 of DOMA with a cold eye.'

'Moreover, DOMA's sweep arguably creates more discord and anomaly than uniformity, as many amici observe,' and DOMA is 'not substantially related to fiscal matters.'

As for preserving 'traditional marriage,' he said, 'A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest.'

'Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws,' he said, adding later, 'Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it.'

BLAG's final justification for '3, encouraging responsible child rearing, fared no better, as the circuit agreed that 'promotion of procreation can be an important government objective' but the court was at pains to see 'how DOMA is substantially related to it.'

The 'proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way,' Jacobs said.