Richard Drew, Associated Press
NEW YORK — Saying the gay population has "suffered a history of discrimination," a divided federal appeals court in Manhattan ruled Thursday that a federal law defining marriage as a union between a man and a woman was unconstitutional, adding fuel to an issue expected to reach the U.S. Supreme Court soon.
The 2nd U.S. Circuit Court of Appeals seemed interested in adding its voice to several other rulings already at the high court's doorstep by issuing its 2-to-1 decision only three weeks after hearing arguments on a lower court judge's findings that the 1996 law was unconstitutional.
In a majority opinion written by Judge Dennis Jacobs, the 2nd Circuit, like a federal appeals court in Boston before it, found no reason the Defense of Marriage Act could be used to deny benefits to married gay couples. It supported a lower court ruling after a woman sued the government in 2010, saying the law required her to pay $363,053 in federal estate tax after her partner of 44 years died.
Jacobs, though, went beyond the Boston court, saying discrimination against gays should be scrutinized by the courts in the same heightened way as discrimination faced by women was in the 1970s. At the time, he noted, they faced widespread discrimination in the workplace and elsewhere. The heightened scrutiny, as it is referred to in legal circles, would mean government discrimination against gays would be assumed to be unconstitutional.
"The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination," said Jacobs, who was appointed to the bench in 1992 by President George H.W. Bush.
He said it was difficult to say whether gays were under-represented in positions of power and authority without knowing their true numbers.
"But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private — which, for our purposes, amounts to much the same thing," Jacobs said.
Lawyer Paul Clement, who had argued in support of the law on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, was traveling and did not immediately return a message seeking comment.
James Esseks, an attorney for the American Civil Liberties Union, called the ruling "a watershed moment in the legal movement for lesbian and gay rights."
"It's fabulous news for same-sex couples in New York and other states," he said.
Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., said the decision echoed testimony before his committee that showed the law "has damaging effects on the lives of thousands of American families who are denied the same federal protections as millions of other Americans."
The 2nd Circuit said the law's "classification of same-sex spouses was not substantially related to an important government interest" and thus violated the equal protection clause of the Constitution.
"It is easy to conclude that homosexuals have suffered a history of discrimination," Jacobs said, noting that for many years in many states, homosexual conduct was criminal and that even the law's supporters acknowledge that gays endured discrimination since at least the 1920s.
He said the law was written so broadly that it touches more than a thousand federal laws. "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public," Jacobs wrote.
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