Kajko, Weisman & Colasanti, LLP

More courts beginning to declare DOMA violates the Constitution

In our last post, we discussed the potential for federal laws like the Defense of Marriage Act (DOMA) to play a role in Massachusetts divorce proceedings. That law has been at the forefront of the debate regarding same-sex marriages and divorces. Recent federal court rulings are challenging the validity of the law, declaring it to be unconstitutional.

In a case from the Ninth Circuit, a District Court Judge ruled that DOMA contravened a homosexual woman's Fifth Amendment rights to equal protection under the law. The court was not the first to find that DOMA violated a person's constitutional rights. The court did distinguish itself, however, in how it examined DOMA under the Constitution.

In constitutional cases, judges apply varying levels of scrutiny to laws depending on certain criteria. The least demanding level of scrutiny is called rational basis. Few laws examined under rational basis are declared unconstitutional. But the court applied a rational basis review to DOMA and determined that the law failed to pass that lenient standard. In his written opinion, the judge stated, "gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." A separate case from the First Circuit also deemed DOMA unconstitutional using a rational basis level of scrutiny.

In time, cases like these may come to profoundly reshape the federal laws that have a bearing on same-sex marriages and divorces. It will be important to follow their progress through the legal system and examine what changes they may create.

Source: The Recorder, "San Francisco Judge Finds DOMA Unconstitutional," Ginny LaRoe, Feb. 22, 2012.

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