Court Strikes Down Discriminatory "Defense of Marriage Act"

February 27, 2012
The month of February has been a good one for those of us who believe that all Americans deserve the equal protection of the law. This month alone, the Washington, Maryland, and New Jersey state legislatures passed marriage equality, and the governor of Washington state signed marriage equality into law. In addition, the Ninth Circuit Court of Appeals issued its long-awaited opinion in the case of Perry v. Brown (formerly, and perhaps more famously, known as Perry v. Schwarzenegger) – finding Proposition 8 unconstitutional. More good news came last week, when an opinion by a California district court judge – and George W. Bush appointee – declared the so-called "Defense of Marriage Act" (DOMA) to be unconstitutional. While this is not the first federal court to address the constitutionality of DOMA, it is the first to rule on the law since the Obama administration decided to stop defending it in court. Moreover, it is one of the few instances in which a judge opted to apply the standard of "heightened scrutiny" – a standard which makes laws that discriminate against a certain group extremely difficult to justify constitutionally –  to the LGBT community within that context. For a group to be considered a "suspect class" (i.e. a group to be protected by "heightened" or "strict scrutiny" of laws that discriminate against them), it must fulfill certain requirements: The group has to have been historically discriminated against, possess an immutable and/or highly visible trait, and be unable to protect itself through the political process, and its distinctive characteristic must not prevent it from being able to contribute to society. Obviously, all of these traits apply to the LGBT community, yet thus far few judges have been willing to consider LGBT Americans a suspect class. This court decision is a major step forward for LGBT equality. Yes, we have faced setbacks – Governor Chris Christie of New Jersey (R) vetoed the marriage equality legislation passed by the legislature, for example – but the month of February has in some ways captured the zeitgeist of the past decade: Yes, sometimes the progress toward full equality for all Americans may be delayed, but, to quote Rev. Martin Luther King, Jr., "the arc of the universe is long, and it bends toward justice." In every arena, whether it is public opinion, the legislatures, or the courts, the fight for lesbian, gay, bisexual, and transgender equality is pressing forward and gaining steam. Image courtesy of Robyn Beck/AFP

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