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Court Smacks Down Anti-Gay Marriage Law

Friday, October 19, 2012

NEW YORK - Saying gay people "have suffered a history of discrimination", ruled a divided federal appeals court in Manhattan on Thursday that a federal law that defines marriage as a union between a man and a woman is unconstitutional, adding fuel to an issue expected to reach the U.S. Supreme Court soon.

The second U.S. Circuit Court of Appeals seemed interested in adding his voice to several other judgments as to the doors of the high court to issue its 2-to-1 takes only three weeks after hearing arguments on the findings of a trial judge that the 1996 law was unconstitutional.

In a majority opinion written by Judge Dennis Jacobs, the 2nd Circuit, as a federal appeals court in Boston before she found no reason could be the Defense of Marriage Act used to deny benefits to homosexual couples married. Supported a lower court ruling after a woman sued the government in 2010, saying that the law required to pay $ 363,053 in federal taxes after his partner of 44 years died.

Jacobs, however, went beyond the Boston court, saying that discrimination against homosexuals should be considered by the courts in the same way as further discrimination against women was in the 1970s. At the same time, he said, faced widespread discrimination in the workplace and elsewhere. The scrutiny, as it is known in legal circles, mean government discrimination against homosexuals is assumed unconstitutional.

"The question is not whether homosexuals have achieved political successes in recent years. Clearly have the question is whether they have the strength to protect themselves politically against unfair discrimination," said Jacobs, who was appointed to the bench in 1992 by President George HW Bush.

He said it was hard to tell if homosexuals were not adequately represented in positions of power and authority without knowing their true numbers.

"But it's safe to say that the apparently low rate of known gays so convenient is attributable to a hostility that excludes or hostility remains private sexual preference - that, for our purposes, is more or less the same," said Jacobs.

Attorney Paul Clement, who had argued in favor of the law on behalf of the Legal Advisory bipartisan House of Representatives, was traveling and did not immediately return a message seeking comment.

Brian Brown, president of the National Organization for Marriage, which presented arguments before the appellate court before sentencing, called the decision "an example of judicial activism and elite judges imposing their views on the American people ".

He urged the Supreme Court to hear the case, saying: ". The American people are entitled to a final judgment in favor of marriage as the union between a man and a woman, as 32 states have been determined by popular vote"

Dale Schowengerdt, a lawyer for the Alliance for Freedom of Scottsdale, Arizona based Defender, said the ruling "out of place" and predicted that the Supreme Court does not agree with it.

James Esseks, a lawyer for the American Civil Liberties Union, said the ruling "a turning point in the legal movement for the rights of gays and lesbians."

"It's fabulous news for same-sex couples in New York and other states," he said.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., Said the decision echoed his testimony before the committee showing the right "of harmful effects on the lives of thousands of American families who are denies the same federal protections as millions of other Americans. "

The 2nd Circuit said the law "classification of same-sex spouses was not substantially related to an important governmental interest" and therefore violates 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 a crime and that even supporters of the law to recognize that gays suffered discrimination at least since the 1920s.

He said the law was written so broadly that plays more than a thousand federal laws. "Homosexuals are not able to adequately protect the public's wishes majority discriminatory," Jacobs wrote.

He rejected the arguments of the supporters of the law that was intended to limit the new categories of eligibility for federal funds, promote uniform application of federal law, protect traditional marriage and responsible parenthood.

"Even if the tradition of preserving themselves were an important goal, DOMA is not a means to achieve it," he added.

Jacobs discusses the argument that gay couples are less able to fulfill family roles in procreation and upbringing of children, saying that the arguments were "inconsistent with actual cases."

And in a footnote, said that as supporters of the law argue that "the acts of Congress might actually influence sexual orientation, there is no evidence to support that claim (and it seems unlikely)."

Judge Chester J. Straub dissented, saying that if the government would change its understanding of marriage: "I think it's for the American people to do it."

"The courts should not intervene when there is a robust political debate because doing so poisons the political right, the imposition of a destructive anti-constitutional ruling majority in a vigorous debate," he said.

The ruling came in a case brought by Edith Windsor. She sued the government in November 2010 because he was told to pay $ 363,053 in federal taxes after his partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.

"This law violates the fundamental principle of American justice that we all cherish," Windsor said in a statement. "Be Thea would have been so proud to see how far we've come in our struggle to be treated with dignity."

The law, which denies federal recognition of gay marriage and affirms the right of states not to recognize such marriages, was passed by a bipartisan majority in both houses of Congress and signed by President Bill Clinton after it appeared in 1993 Hawaii would legalize gay marriage. Since then, many states have banned gay marriage, but several have passed, including Massachusetts and New York.

The government defended the federal law until President Barack Obama and Attorney General Eric Holder, in early 2011 aimed at lawyers quit. A government lawyer said the 2nd Circuit that the government revised the law and concluded that it deserved a stricter view of what constitutes discrimination legal reasoning previously applied.

Follow Larry Neumeister at
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