Because homosexuals are discriminated against and are a “politically weakened minority”, a divided federal appeals court in New York ruled yesterday that the US Defense of Marriage Act (DOMA) is unconstitutional. The decision by the 2nd U.S. Circuit Court of Appeals was split 2 to 1. After only three weeks of hearings, it found that there was no reason why homosexual couples should be denied benefits available to married heterosexual couples.

The court was not persuaded by arguments in favour of DOMA. Preserving tradition is not the purpose of law; the promotion of procreation, while it is a legitimate government interest, is not related to this legislation. The overriding concern of the court was discrimination. On that it had much to say. It concluded that discrimination against homosexuals should be given “heightened scrutiny”, in the same way as discrimination against women was in the 1970s.

“The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination,” wrote  Judge Dennis Jacobs in the majority decision.

He said that it was difficult to say whether homosexual were under-represented “in positions of power and authority” because there are no accurate figures of how many homosexuals there are in the US. “But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private – which, for our purposes, amounts to much the same thing,” he wrote. “Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.”

Now there is little doubt that the constitutionality of DOMA, and gay marriage, will end up before the US Supreme Court. 


Michael Cook

Michael Cook is the editor of MercatorNet. He lives in Sydney, Australia.