Beyond Thunder DOMA, Part 2

Another major federal appeals court decision has struck down the Defense of Marriage Act as unconstitutional, but this time the venue was far more conservative as was the jurist handing down the decision.

In this case, the Second Circuit determined it was unconstitutional for the federal government to require 83-year-old Edith Windsor to pay over $300,000 in estate taxes after the death of her spouse Thea Spyer. Windsor and Spyer lived in New York, but married in Toronto, Canada, in 2007, after a 40-year partnership. When Spyer died in 2009, New York had not yet legalized same sex marriage, and thus the federal government required Windsor to pay taxes on Spyer’s estate — a burden that wouldn’t have befallen an opposite-sex couple, whether married in or out of state.

In February 2011, the Justice Department halted its defense of DOMA, upsetting House Republicans who have spent over $1 million defending it in the Obama administration’s stead.

“Notwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money,” the opinion reads. “The constitutionality of the statute will have a considerable impact on many operations of the United States.”

Judge Dennis Jacobs, who authored the opinion, is the circuit’s chief judge and was appointed to the court in 1992 by President George H.W. Bush.

The raw economic truth of same-sex marriage discrimination at the federal level is, what I believe, the most powerful legal argument as to why the Defense of Marriage Act has to go.  It's discrimination written into the United States code, period.

We'll see how it shakes out.  But this is by far the best conservative argument against DOMA, and I think it will be enough to get it struck down sometime next year.

Here's hoping.