This post points out that today’s Second Circuit decision has much more potential impact than the headlines suggest,
The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit. Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional. As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub, dissenting, the opinion turns the perceived ideological divide of the debate on its head.
Upon the first blush, more striking to me is the reasoning rather than the result. Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause. In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme. Determining that homosexuals as a class have “A)…endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with…
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