National
BREAKING: Second Circuit latest to strike down DOMA
Anti-gay law ruled unconstitutional in 2-1 decision
The Second Circuit ruled that DOMA is unconstitutional against Edith Windsor‘s legal challenge against the law (Washington Blade file photo by Michael Key)
A federal appeals court has ruled the Defense of Marriage Act is unconstitutional in case filed by a New York widow who’s challenging the statute on the basis that it unfairly forced her to pay $363,000 in estate taxes.
In a 2-1 decision, the U.S. Second Circuit Court of Appeals ruled against Section 3 of DOMA on the basis that it violates equal protection under the Fifth Amendment of the U.S. Constitution.
The majority opinion came from Chief Judge Dennis Jacobs, who wrote the decision, and Judge Christopher Droney. Judge Chester Straub dissented by asserting DOMA is constitutional.
“DOMA’s classification of same-sex spouses was not substantially related to an important government interest,” the decision states. “Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.”
The plaintiff in the lawsuit, which was filed by the American Civil Liberties Union, is 83-year-old lesbian Edith Windsor, who in 2009 had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer, because DOMA prohibits the federal recognition of same-sex marriage.
In a statement, Windsor praised the Second Circuit for coming to the conclusion that DOMA is unconstitutional.
“This law violated the fundamental American principle of fairness that we all cherish,” Windsor said. “I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”
The decision means seven federal courts — eight if a bankruptcy court ruling is included — have now determined DOMA is unconstitutional at a time when numerous cases challenging the anti-gay law are pending for consideration before the U.S. Supreme Court. The high court hasn’t yet determined whether it will take up the constitutionality of DOMA, but is likely to do so. The Second Circuit is also the second appeals court to strike down DOMA. The First Circuit ruled against the law in May.
The next step in the process is for House Republicans to appeal the decision either to the full Second Circuit or the Supreme Court, which has already been asked to take up the Windsor case along with several other DOMA cases. The high court will then decide the constitutionality of DOMA once and for all on a nationwide basis.
Susan Stenger, an appeals court attorney who’s handled LGBT rights cases for the Boston-based firm Burns & Levinson, said it’s unlikely DOMA proponents would pursue en banc review in the cases because so many other lawsuits against the anti-gay law are already pending before the Supreme Court.
“The fact that there’s a dissent [means] they might try en banc review, but also knowing that this will ultimately go to the Supreme Court, I would think they wouldn’t bother,” Stenger said. “Why waste time and resources when if an en banc changed anything, whomever lost would certainly appeal?”
Dennis, who was appointed by President George H.W. Bush, wrote the majority decision against DOMA even though he has reputation for being a conservative judge. Joining him was an Obama appointee, Droney. The dissenting judge, Straub, was appointed by former President Clinton.
In addition to ruling against DOMA, the judges determined the anti-gay law should be subject to heightened scrutiny, or a greater assumption that the law is unconstitutional. The Second Circuit is the first appeals court to determine that DOMA should be subject to this level of review.
Based on precedent the Supreme Court set in earlier court cases, the court offers four reasons — including the history of discrimination faced by LGBT people — as reasons why DOMA should be subject to heightened scrutiny.
“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority,” the decision states.
Douglas Nejaime, who’s gay and a law professor at Loyola Law School, called the Second Circuit’s decision to apply heightened scrutiny against DOMA “very significant” because it means the Supreme Court will have to weigh in on the matter in addition to the law itself.
“As a practical matter, this makes it even more difficult for the Supreme Court to avoid the question of heightened scrutiny,” NeJaime said. “If the Gill decision from the First Circuit was the only federal appellate decision striking down DOMA, the Court could have struck down DOMA — upholding that decision — without passing on the level-of-scrutiny question. But with the Second Circuit’s decision in Windsor, the Court is more likely to address heightened scrutiny.”
NeJaime added that as a result of the Second Circuit application of heightened scrutiny, courts are now more likely to find state marriage bans unconstitutional as well as anti-gay laws related parental rights and public employment discrimination.
Notably, the decision rejects an argument proposed by private attorney Paul Clement — who’s advocating on behalf of the anti-gay law for the House Republican-led Bipartisan Legal Advisory Group — that Windsor’s case should be sent to the New York Court of Appeals for certification because Spyer died at a time before New York legalized same-sex marriage.
The appeals court says certification is unnecessary because the New York Court of Appeals has expressed a disinclination to decide the question and because New York’s intermediate appellate courts are unanimous on the issue. At that time of Spyer’s death in 2009, Windsor’s marriage was recognized in New York by an executive order issued by then-Gov. David Paterson.
“Given the consistent view of these decisions, we see no need to seek guidance here,” the decision states. “Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing.”
The court also rejects an argument posed by Clement that the court should uphold DOMA because of precedent set by Baker v. Nelson, a 1972 case challenging Minnesota’s prohibition on same-sex marriage that the Supreme Court refused to hear for want of federal question.
Judges say Baker isn’t controlling because in the 40 years following the case there have been “manifold changes to the Supreme Court’s equal protection jurisprudence” and because the lawsuits are distinct: Baker was about same-sex marriage within a state while the Windsor is about a federal law.
“After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived,” the decision states. “Other courts have likewise concluded that Baker does not control equal protection review of DOMA for these reasons.”
James Esseks, director of the ACLU LGBT Project, shared in the jubilation that the court’s reasoning led the judges to rule against the anti-gay law.
“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers,” Esseks said. “Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”
Rep. Jerrold Nadler (D-N.Y.), who was among the 144 House Democrats who signed a friend-of-the-court brief against DOMA in the Windsor case, also commended the judges for ruling in favor of a plaintiff who’s also his constituent.
“As the amicus brief I spearheaded in this case pointed out, and as the court agreed, there is no justification for denying Edie Windsor the same right as all other spouses to her full inheritance without paying a tax penalty,” Nadler said. “Edie lives in my congressional district, and was with her wife, Thea Spyer, for 44 years. The last thing she should have to worry about following the loss of her spouse is an unjust tax penalty imposed for no other reason than the fact that she and her wife were the same gender.”
In his dissenting opinion, Straub dissents in part and concurs in part, saying he disagrees with the majority opinion that DOMA is unconstitutional and the legislative approach is the appropriate course of action for those who want it lifted from the books.
“The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity,” Straub writes. “Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.”
Stenger said she thinks the dissent will have value “to the people who disagree” with the majority opinion to justify their position, but otherwise have little impact.
“The Supreme Court obviously studies all the detail of a dissent in making its own decision, so it may find something in there persuasive, but technically it has no impact,” Stenger said. “It may just give food-for-thought to somebody who’s inclined to go in that direction.”
NOTE: This post has been edited and updated to include more information and reaction to the Second Circuit ruling.
Michigan
Mich. Democrats spar over LGBTQ-inclusive hate crimes law
Lawmakers disagree on just what kind of statute to pass
Michigan could soon become the latest state to pass an LGBTQ-inclusive hate crime law, but the state’s Democratic lawmakers disagree on just what kind of law they should pass.
Currently, Michigan’s Ethnic Intimidation Act only offers limited protections to victims of crime motivated by their “race, color, religion, gender, or national origin.” Bills proposed by Democratic lawmakers expand the list to include “actual or perceived race, color, religion, gender, sexual orientation, gender identity or expression, ethnicity, physical or mental disability, age, national origin, or association or affiliation with any such individuals.”
Democratic Gov. Gretchen Whitmer and Attorney General Dana Nessel have both advocated for a hate crime law, but house and senate Democrats have each passed different hate crimes packages, and Nessel has blasted both as being too weak.
Under the house proposal that passed last year (House Bill 4474), a first offense would be punishable with a $2,000 fine, up to two years in prison, or both. Penalties double for a second offense, and if a gun or other dangerous weapons is involved, the maximum penalty is six years in prison and a fine of $7,500.
But that proposal stalled when it reached the senate, after far-right news outlets and Fox News reported misinformation that the bill only protected LGBTQ people and would make misgendering a trans person a crime. State Rep. Noah Arbit, the bill’s sponsor, was also made the subject of a recall effort, which ultimately failed.
Arbit submitted a new version of the bill (House Bill 5288) that added sections clarifying that misgendering a person, “intentionally or unintentionally” is not a hate crime, although the latest version (House Bill 5400) of the bill omits this language.
That bill has since stalled in a house committee, in part because the Democrats lost their house majority last November, when two Democratic representatives resigned after being elected mayors. The Democrats regained their house majority last night by winning two special elections.
Meanwhile, the senate passed a different package of hate crime bills sponsored by state Sen. Sylvia Santana (Senate Bill 600) in March that includes much lighter sentences, as well as a clause ensuring that misgendering a person is not a hate crime.
Under the senate bill, if the first offense is only a threat, it would be a misdemeanor punishable by one year in prison and up to $1,000 fine. A subsequent offense or first violent hate crime, including stalking, would be a felony that attracts double the punishment.
Multiple calls and emails from the Washington Blade to both Arbit and Santana requesting comment on the bills for this story went unanswered.
The attorney general’s office sent a statement to the Blade supporting stronger hate crime legislation.
“As a career prosecutor, [Nessel] has seen firsthand how the state’s weak Ethnic Intimidation Act (not updated since the late 1980’s) does not allow for meaningful law enforcement and court intervention before threats become violent and deadly, nor does it consider significant bases for bias. It is our hope that the legislature will pass robust, much-needed updates to this statute,” the statement says.
But Nessel, who has herself been the victim of racially motivated threats, has also blasted all of the bills presented by Democrats as not going far enough.
“Two years is nothing … Why not just give them a parking ticket?” Nessel told Bridge Michigan.
Nessel blames a bizarre alliance far-right and far-left forces that have doomed tougher laws.
“You have this confluence of forces on the far right … this insistence that the First Amendment protects this language, or that the Second Amendment protects the ability to possess firearms under almost any and all circumstances,” Nessel said. “But then you also have the far left that argues basically no one should go to jail or prison for any offense ever.”
The legislature did manage to pass an “institutional desecration” law last year that penalizes hate-motivated vandalism to churches, schools, museums, and community centers, and is LGBTQ-inclusive.
According to data from the U.S. Department of Justice, reported hate crime incidents have been skyrocketing, with attacks motivated by sexual orientation surging by 70 percent from 2020 to 2022, the last year for which data is available.
Twenty-two states, D.C., Puerto Rico, and the U.S. Virgin Islands have passed LGBTQ-inclusive hate crime laws. Another 11 states have hate crime laws that include protections for “sexual orientation” but not “gender identity.”
Michigan Democrats have advanced several key LGBTQ rights priorities since they took unified control of the legislature in 2023. A long-stalled comprehensive anti-discrimination law was passed last year, as did a conversion therapy ban. Last month the legislature updated family law to make surrogacy easier for all couples, including same-sex couples.
A bill to ban the “gay panic” defense has passed the state house and was due for a Senate committee hearing on Wednesday.
Indiana
Drag queen announces run for mayor of Ind. city
Branden Blaettne seeking Fort Wayne’s top office
In a Facebook post Tuesday, a local drag personality announced he was running for the office of mayor once held by the late Fort Wayne Mayor Tom Henry, who died last month just a few months into his fifth term.
Henry was recently diagnosed with late-stage stomach cancer and experienced an emergency that landed him in hospice care. He died shortly after.
WPTA, a local television station, reported that Fort Wayne resident Branden Blaettne, whose drag name is Della Licious, confirmed he filed paperwork to be one of the candidates seeking to finish out the fifth term of the late mayor.
Blaettner, who is a community organizer, told WPTA he doesn’t want to “get Fort Wayne back on track,” but rather keep the momentum started by Henry going while giving a platform to the disenfranchised groups in the community. Blaettner said he doesn’t think his local fame as a drag queen will hold him back.
“It’s easy to have a platform when you wear platform heels,” Blaettner told WPTA. “The status quo has left a lot of people out in the cold — both figuratively and literally,” Blaettner added.
The Indiana Capital Chronicle reported that state Rep. Phil GiaQuinta, who has led the Indiana House Democratic caucus since 2018, has added his name to a growing list of Fort Wayne politicos who want to be the city’s next mayor. A caucus of precinct committee persons will choose the new mayor.
According to the Fort Wayne Journal Gazette, the deadline for residents to file candidacy was 10:30 a.m. on Wednesday. A town hall with the candidates is scheduled for 6 p.m. on Thursday at Franklin School Park. The caucus is set for 10:30 a.m. on April 20 at the Lincoln Financial Event Center at Parkview Field.
At least six candidates so far have announced they will run in the caucus. They include Branden Blaettne, GiaQuinta, City Councilwoman Michelle Chambers, City Councilwoman Sharon Tucker, former city- and county-council candidate Palermo Galindo, and 2023 Democratic primary mayoral candidate Jorge Fernandez.
Arizona
Ariz. governor vetoes anti-transgender, Ten Commandments bill
Katie Hobbs has pledged to reject anti-LGBTQ bills that reach her desk
BY CAITLIN SIEVERS | A slew of Republican bills, including those that would have allowed discrimination against transgender people and would have given public school teachers a green light to post the Ten Commandments in their classrooms, were vetoed by Gov. Katie Hobbs on Tuesday.
Hobbs, who has made it clear that she’ll use her veto power on any bills that don’t have bipartisan support — and especially ones that discriminate against the LGBTQ community — vetoed 13 bills, bringing her count for this year to 42.
Republicans responded with obvious outrage to Hobbs’s veto of their “Arizona Women’s Bill of Rights,” which would have eliminated any mention of gender in state law, replacing it with a strict and inflexible definition of biological sex. The bill would have called for the separation of sports teams, locker rooms, bathrooms, and even domestic violence shelters and sexual assault crisis centers by biological sex, not gender identity, green-lighting discrimination against trans Arizonans.
“As I have said time and again, I will not sign legislation that attacks Arizonans,” Hobbs wrote in a brief letter explaining why she vetoed Senate Bill 1628.
The Arizona Senate Republicans’ response to the veto was filled with discriminatory language about trans people and accused them of merely pretending to be a gender different than they were assigned at birth.
“With the radical Left attempting to force upon society the notion that science doesn’t matter, and biological males can be considered females if they ‘feel’ like they are, Katie Hobbs and Democrats at the Arizona State Legislature are showing their irresponsible disregard for the safety and well-being of women and girls in our state by killing the Arizona Women’s Bill of Rights,” Senate Republicans wrote in a statement.
The Senate Republicans went on to accuse the Democrats who voted against the bill of endangering women.
“Instead of helping these confused boys and men, Democrats are only fueling the dysfunction by pretending biological sex doesn’t matter,” Senate President Warren Petersen said in the statement. “Our daughters, granddaughters, nieces, and neighbors are growing up in a dangerous time where they are living with an increased risk of being victimized in public bathrooms, showers, and locker rooms because Democrats are now welcoming biological males into what used to be traditionally safe, single-sex spaces.”
But trans advocates say, and at least one study has found, that there’s no evidence allowing trans people to use the bathroom that aligns with their identity makes those spaces less safe for everyone else who uses them.
In the statement, the bill’s sponsor, Sen. Sine Kerr (R-Buckeye), claimed that the bill would have stopped trans girls from competing in girls sports, something she said gives them an unfair advantage. But Republicans already passed a law to do just that in 2022, when Republican Gov. Doug Ducey was still in office, though that law is not currently being enforced amidst a court challenge filed by two trans athletes.
Republicans also clapped back at Hobbs’ veto of Senate Bill 1151, which would have allowed teachers or administrators to teach or post the Ten Commandments in public school classrooms, a measure that some Republicans even questioned as possibly unconstitutional.
In a statement, the bill’s sponsor, Sen. Anthony Kern (R-Glendale), accused Hobbs of “abandoning God” with her veto.
“As society increasingly strays away from God and the moral principles our nation was founded upon, Katie Hobbs is contributing to the cultural degradation within Arizona by vetoing legislation today that would have allowed public schools to include the Ten Commandments in classrooms,” Kern said in the statement.
In her veto letter, Hobbs said she questioned the constitutionality of the bill, and also called it unnecessary. During discussion of the bill in March, several critics pointed out that posting the Ten Commandments in public school classrooms, tenets of Judeo-Christian religions, might make children whose families practice other religions feel uncomfortable.
“Sadly, Katie Hobbs’ veto is a prime example of Democrats’ efforts to push state-sponsored atheism while robbing Arizona’s children of the opportunity to flourish with a healthy moral compass,” Kern said.
Another Republican proposal on Hobbs’s veto list was Senate Bill 1097, which would have made school board candidates declare a party affiliation. School board races in Arizona are currently nonpartisan.
“This bill will further the politicization and polarization of Arizona’s school district governing boards whose focus should remain on making the best decisions for students,” Hobbs wrote in her veto letter. “Partisan politics do not belong in Arizona’s schools.”
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Caitlin joined the Arizona Mirror in 2022 with almost 10 years of experience as a reporter and editor, holding local government leaders accountable from newsrooms across the West and Midwest. She’s won statewide awards in Nebraska, Indiana and Wisconsin for reporting, photography and commentary.
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The preceding piece was previously published by the Arizona Mirror and is republished with permission.
Amplifying the voices of Arizonans whose stories are unheard; shining a light on the relationships between people, power and policy; and holding public officials to account.
Arizona Mirror is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
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