That's not a surprising ruling from this region. (The 2nd Circuit is comprised of New York, Connecticut, and Vermont.) The more interesting bit is its arguments for why. It ruled that homosexual equal protection cases come under intermediate scrutiny (same as sex/gender equal protection cases), a departure from past precedent which applied only rational basis. Under rational basis, the government only has to supply some rational association between its purpose and the law under dispute, and the burden of dispelling that rationale falls more on the plaintiff. Under intermediate (quasi-suspect) scrutiny, the burden of proving the acceptability of the rationale falls more on the government.

Since I've already picked out the key points of the ruling for someone in gchat, I'm just going to c/p my parts of that transcript here rather than do it all over again. Note that I'm no legal scholar, so anywhere it seems I'm doing my own interpretation, it might be I'm getting something a wrong. You can read the full decision yourself by going to http://tinyurl.com/9qfmkoy (For some reason, this site is reading it as a broken link, though it works just fine for me.)

They went with intermediate scrutiny

And it seems they went with states' rights, at least by not addressing that question. They narrowed the scope of the case to just what the federal government is allowed to do.
(I.e., they decided against using Baker as precedent.)
Also stating Baker is too old to be relevent, given changes in jurisprudence, such as defining levels of scrutiny.


They did acknowledge "protection of traditional marriage" as a rational basis. And "the encouragement of 'responsible' procreation"


"Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case."
going to see how they justify it as heightened now

Cites Nyquest v. Mauclet: "The 'political powerlessness' of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates."

"In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority. "

"Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal."
Rules political disenfranchisement is not necessary. "Citizens born out of wedlock have never been inhibited in voting; yet the Supreme Court has applied intermediate scrutiny in cases of illegitimacy. See generally Lalli v. Lalli"
"Ninety years of discrimination is entirely sufficient to document a “history of discrimination.”

On the notion that homosexuality imparts an inability to contribute to society via procreation, they ruled essentially that BLAG was being insensible for even arguing it. "BLAG cites no precedential application of that standard to support its interpretation, and it is inconsistent with actual cases. . . . In any event, the abilities or inabilities cited by BLAG bear upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply."

On the distinguishing characteristic test: "This consideration is often couched in terms of “immutability.” BLAG and its amici argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap (for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define . . . a discrete group.” See Bowen, 483 U.S. at 602 (emphasis added). No “obvious badge” is necessary. See Mathews v. Lucas, 427 U.S. 495, 506 (1976). Classifications based on alienage, illegitimacy, and national origin are allsubject to heightened scrutiny, Cleburne, 473 U.S. at 440-41, even though these characteristics do not declare themselves, and often may be disclosed or suppressed as a matter of preference. What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest."

For political powerlessness, they draw an analog from the SCOTUS' ruling in favor of women on this same issue. Women had had political victories, but they were still underrepresented such that they still lacked the strength to protect themselves from wrongful discrimination.

"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."

Quasi-suspect rather than suspect because, "While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”"

"Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.

"DOMA is not substantially related to the important government interest of protecting the fisc" because it touches on a thousand laws unrelated to fiscal management; and in any case, such a justification doesn't survive a test from invidious classification.

On traditional marriage: Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws.
Lawrence wins again!

"Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: 'because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, 'preserve' the institution of marrage as one between a man and a woman."

And they rule procreation is unrelated to DOMA. BLAG's rationals "are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way. DOMA does not provide any incremental reason for opposite-sex couples to engage in 'responsible procreation.'

Last statement before the conclusion: "Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door."

Straub's dissent, I think was arguing that a) Baker could have used the Fifth Amendment just as easily as the Fourteenth Amendment, b) Under the Fifth Amendment, Baker applies more closely to Windsor -- too closely to ignore it as precedent, c) therefore the majority should have considered the 2nd Circuit bound to Baker even though it was a summary dismissal, d) therefore the case should have been judged under rational basis, not intermediate/quasi-suspect scrutiny, and e) under rational basis, the appeal of the district court's opinion (in favor of Windsor) should not be summarily dismissed, but rather likely overturned.


Once more, here's the URL to the full decision (and dissent): http://tinyurl.com/9qfmkoy