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LBB: Judicial Activism Brings Down DOMA in the Second Circuit

LBB: Judicial Activism Brings Down DOMA in the Second Circuit
By: Mario Diaz, Esq. - 10/26/2012

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the Legal Blurb Blog

The latest legal news and commentary from a conservative perspective.


The Second Circuit is now the first court to apply “intermediate scrutiny,” a standard of review typically reserved for discrimination based on gender or legitimacy.

Windsor v. US involves Edith Windsor, a lesbian who married in Canada in 2007, who was residing in New York when her “spouse” passed away in 2009. She then sued when she was denied the spousal deduction for federal estate taxes.

The dissent focused on the essential problem with the majority’s approach:

The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.

As the dissent points out, the case “is about the preservation of the traditional institution of marriage and its procreation of children.”

Fortunately that Judge Chester Straub, who wrote the dissent, called out Chief Judge Dennis Jacobs for his activism:

Whether that understanding [of marriage] 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.

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