On Thursday in New York's 2nd U.S. Circuit Court of Appeals, widow Edith Windsor won a long-fought legal battle in the fight for gay marriage. Windsor and her late partner, Thea Spyer, were married in Canada in 2007. Windsor, now 83, cared for Spyer until her death in 2009 from multiple sclerosis, after which the IRS slapped Windsor with a $300,000 estate tax bill — a bill she wouldn't have received had she been married to a man. She subsequently sued the federal government.
But the decision, the second one by a federal court to strike down the Defense of Marriage Act, may not be cause for full-out celebration. According to the Daily Beast, the wording used to describe the details of Windsor's case, Windsor v. United States, may be its undoing if DOMA eventually ends up before the Supreme Court, which seems likely.
What's key is the use of the word "scrutiny" in the court's decision and the history of the Supreme Court's rulings regarding laws with that classification. The Daily Beast describes "scrutiny" as crucial legalese because there are three different tiers — low level, intermediate and strict. Cases deemed low level are less likely to be overturned because they need only have a "rational basis." However, laws marked for intermediate or strict scrutiny, which apply to specific groups, are usually easier to overturn because they must fit within very narrow legal standards.
In the earlier DOMA case, Gill v. Office of Personnel Management, issued last May by a federal court in Boston, two Republican appointees signed onto a remarkably conservative opinion overturning DOMA — not, importantly, because gays are a protected class like African-Americans, but because of the law's "disparate impact on minority interests" and "federalism concerns."
In fact, rather than apply any previously-defined level of scrutiny, the Gill court created a new standard: a case-by-case "careful assessment of the justifications" for the law, which DOMA failed. (The court unhelpfully referred to it as "intensified scrutiny.")
In Windsor, however, the Second Circuit went further, applying "intermediate scrutiny" to laws, like DOMA, that target gays and lesbians.
So if you're a gay-rights supporter, Windsor initially appears to be the stronger holding. It dispensed with claims that DOMA would protect "uniformity of marriage" or the "traditional understanding of marriage." And it held that gay people are a "politically weakened minority" that has "historically endured persecution and discrimination," concluding that "homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." …
But it's not clear that Justice Anthony Kennedy — widely seen as the swing vote in any future DOMA case — will agree … Moreover, the court has declined on multiple occasions to apply intermediate scrutiny outside of gender cases, certain free-speech cases, and a small number of other characteristics such as illegitimacy and alienage.
Read more at the Daily Beast.