Written by: Lenorae Atter, Attorney at Law
The Second Circuit Court of Appeals ruled the Defense of Marriage Act unconstitutional on Thursday, October 18, 2012. The Defense of Marriage Act is basically the proposition that marriage is only legal between a man and a woman. This is the second opinion to be state, for different reasons, that DOMA is unconstitutional, the first was by the First Circuit Court of Appeals. This time, however, the court seems to have laid greater groundwork for establishing a basis for the unconstitutionality and threshold that must be met to rule the Act constitutional.
The shift in the opinion is not that the overall outcome is different, but that the law established through the opinion gives a higher scrutiny to the issue than was done by the First Circuit Court of Appeals. The first ruling was based on a lesser evaluation of the constitution, which is the “rational basis” test. This basically is like an overseeing of the law for purposes of changing legislation in the future. The question is whether there is a rational basis for the law that has been passed. In many cases, the legislation will change to provide the rational basis rather than simply changing law because the first did not meet the standard. Therefore, the overall decision is one that can be beaten with proper wording changes down the line.