Second Circuit Strikes Down DOMA
Some key points:
1) This is just the latest in a growing chorus of decisions that have found DOMA unconstitutional
2) The Judge who wrote the panel's opinion is a conservative appointed to the Second Circuit by Bush 41. When he was made the Circuit's chief justice in 2006, the NY Sun described him as "[w]idely recognized as one of the more conservative jurists on the 2nd Circuit", and here's one (liberal) blogger's description of him a few years back:
That's important for two reasons: first, this wasn't some wild-eyed liberal with an agenda to push; he (like Ted Olson) is a respected and conservative jurist who, on the law, believes DOMA is unconstitutional. And second, because it drives home, again, that ideology is not necessarily a predictor of judicial rulings, at least not for the good judges.
Jacobs in one of those jurists (criticized in prior columns
) who seem to relish speaking before ideological groups and discussing matters that are either before his court or likely to come before him. For example, on November 19, 2010, he delivered a speech titled “National Security & The Constitution” before a gathering of the Federalist Society at the Mayflower Hotel in Washington where he criticized courts for their rulings against national security agencies and lawyers who distrust the military. What concerns me with these types of speeches is that judges can feel that they have to maintain “their base” and play to the ideological appeal of reckless rhetoric and posturing from the bench.
3) Most importantly, the panel ruled that homosexuals were a quasi-suspect class (like gender classification) and laws that relied on such classifications were subject to intermediate scrutiny. That makes this decision the first to rule that DOMA had to do more than just pass rational basis review. (The dissent disagreed, and ruled it had a rational basis).
That's likely to have a large impact, and could lead to Supreme Court review.