The decision by a federal appeals court in New York to invalidate
the Defense of Marriage Act improves the already strong prospect
that the US Supreme Court will take up the issue of gay marriage
On Thursday, a panel of the Second US Circuit Court of Appeals
voted 2 to 1 to declare a portion of the Defense of Marriage Act
(DOMA) unconstitutional because the majority judges said it violates
the right of same-sex married spouses in New York to equal
The decision marks the second time in five months that a federal
appeals court has struck down DOMA on constitutional grounds.
On May 31, the First Circuit in Boston ruled in favor of same-
sex couples in Massachusetts, challenging what they argued was the
discriminatory nature of DOMA in allowing heterosexual couples to
enjoy full federal benefits while denying those same benefits to
married couples who are gay and lesbian.
The Supreme Court is poised to soon consider whether to take up
as many as six different appeals raising various challenges to DOMA.
Adding another appeals court decision to that mix increases the
prospect the justices will agree to decide the question.
In addition, the Supreme Court is also poised to consider whether
to examine a Ninth Circuit decision striking down Californias
Proposition-8 ban on same-sex marriages in that state.
Thursdays Second Circuit decision is interesting in part because
of the lineup of judges and the speed of their work. The opinion
striking down the statute was written by Chief Judge Dennis Jacobs,
an appointee of President George H.W. Bush, and was joined by
Christopher Droney, an Obama appointee.
The dissent was written by Chester Straub, a Clinton appointee.
Argument in the case took place three weeks ago on Sept. 27. The
majority opinion totals 43 pages, and the dissent, 40. Some federal
appeals courts are known for their rocket docket, but the Second
Circuit is generally not among them.
The fast opinion suggests the judges like the parties in
litigation may have kept one eye on the Supreme Court throughout
The Second Circuit decision drew praise from gay rights activists
and supporters and criticism from opponents.
Todays ruling is the second by a federal appellate court and the
10th ruling in a row from judges appointed by presidents from Nixon
to Reagan to George W. Bush, all agreeing that this disgraceful and
discriminatory gay exception to the way the federal government
treats married couples must end, said Evan Wolfson, president and
founder of Freedom to Marry. …