Judges: Gays, lesbians protected group

WASHINGTON – Gay-rights advocates won another victory in their fight for equal treatment under the law Thursday when the U.S. appeals court in New York struck down a key part of the Defense of Marriage Act and held for the first time that gays and lesbians are a minority group deserving of special protection from discrimination under the Constitution.

The 2nd Circuit Court of Appeals in Manhattan joined a growing number of federal judges in New England and California who have ruled that the U.S. government may not deny equal federal benefits to legally married gay couples.

But in its opinion Thursday, the 2nd Circuit broke new ground, becoming the first to decide that official discrimination against gays and lesbians is like discrimination against women or racial minorities and generally forbidden by law.

“Homosexuals have suffered a history of discrimination,” said Chief Judge Dennis Jacobs for a 2-1 majority. And while gays have been winning political victories, he said they are still subject to many discriminatory laws. Jacobs said courts should view all laws that discriminate based on sexual orientation with the same skepticism accorded to laws that discriminate based on gender.

Jacobs, who has a generally conservative reputation, was appointed to the court by former President George H.W. Bush. He was joined by Judge Christopher Droney, an appointee of former President Bill Clinton. In dissent, Judge Chester Straub, another Clinton appointee, said judges should not change the traditional definition of marriage. If it is to be changed, “I believe it is for the American people to do so,” he wrote.

The judges ruled in the case of Edith Windsor, an 83-year-old widow, who had to pay $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, because under federal law they were not legally married. The two met in New York’s Greenwich Village in the 1960s and were together for 44 years. They were married in Canada and lived in New York, one of six states where same-sex marriage is legal.

“Edie and Thea’s home state of New York has long respected the marriages of same-sex couples and explicitly supports the freedom to marry,” said Mariko Hirose, an attorney with the New York Civil Liberties Union. “It is only right that the federal government respect the state’s decision and treat all married couples fairly.”

When Congress passed DOMA in 1996, its main goal was to protect states from being forced to honor same-sex marriages from other states. That part of the law still stands. The decision Thursday rejects another part of the law that bars federal agencies from recognizing same-sex couples, even in states where their marriages are legal.

Married couples from Massachusetts, Connecticut, California and New York have filed suits to challenge this provision. They argued they were being wrongly denied the tax benefits and Social Security survivor payments as well as family health insurance that is available to other married federal employees. And in every recently decided case, they have won. The judges have said this anti-gay discrimination violates the Constitution’s guarantee of equal protection of the laws. They have also noted that marriage has been a matter of state law, not federal law.

President Barack Obama announced last year that his administration would not defend DOMA in court. House Republicans voted to take up the defense and hired Washington attorney Paul Clement, a former solicitor general under President George W. Bush, to argue for the law’s constitutionality. Earlier this week, Democrats in the House criticized Speaker John Boehner for spending $1.5 million in the so far futile defense of the law.

The Supreme Court is expected to take up one or more of the DOMA cases later this year and issue a ruling by next June.

These cases, while significant to tens of thousands of same-sex couples, do not require the judges to decide whether gays and lesbians have a right to marry in states that forbid same-sex unions.

In May, the 1st U.S. Circuit Court of Appeals in Boston became the first to declare DOMA unconstitutional. An appeal in the Massachusetts case is pending before the high court, but the justices may steer clear of it because Justice Elena Kagan may have to recuse herself from a decision.

During her confirmation hearings, she said she had consulted with Justice Department colleagues on the Massachusetts case when she was U.S. solicitor general. If so, the justices may opt to take up another of the pending cases, including possibly the case decided Thursday.