Mr. October - Chief Judge Jacobs Serves Up DOMA To Supreme Court

by Joseph J. Shepherd and Adam Francoeur

In a 2-1 decision authored by Chief Judge Jacobs the Second Circuit Court of Appeals ruled in the case Windsor v. United States that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional.   The federal appeals court based in New York City joins the growing chorus of courts to strike down DOMA, and in doing so, nearly guaranteed that the Supreme Court will take up the issue of DOMA’s constitutionality during its current term and potentially served up the perfect vehicle for doing so.

In his landmark decision, Chief Judge Jacobs applied—for the first time ever—heightened scrutiny to sexual orientation classifications, and rejected the government’s rationale for DOMA (as argued by the John Boehner anointed Bipartisan Legal Advisory Group), of maintaining a uniform definition of marriage, conserving public resources, preserving a traditional definition of marriage, and encouraging responsible procreation.  Judge Jacobs rejected these arguments as not “substantially related to a significant government interest” and as not “exceedingly persuasive justification[s] for DOMA” under heightened scrutiny analysis.   He noted DOMA’s sweep over one-thousand federal laws arguably creates more discord and anomalous definitions of marriage, and that its breadth is not substantially related to fiscal matters.  He provided that while the promotion of procreation can be an important government objective, DOMA does not achieve this end as opposite-sex couples had the same incentive structure to marry and rear children both before and after DOMA.  Regarding the “preserving the traditional definition of marriage” argument, the court pointed out that because defining marriage is traditionally left to the states, a federal law like DOMA does nothing to, strictly speaking, “preserve” a definition of marriage as between one man and one woman.

Judge Jacobs’s remarkably direct and straightforward analysis is a hallmark of this particular decision—as is the application of heightened scrutiny as well as its purely federal application.  The purely federal nature of the majority’s decision distinguishes it from earlier rulings by federal courts whose cases concerned the conflict between state recognition of marriage and the federal rejection of such recognition.  The Supreme Court’s cautious approach to involving itself in questions of state law—particularly as it relates to the regulation of marriage—make Windsor a uniquely strong vehicle through which the Supreme Court may seek to address DOMA’s constitutionality.  Similarly, as Justice Kagan was not involved in the Windsor case during her time at the Solicitor General’s office, she would not likely recuse herself, as may be the case in the First Circuit’s May decision.   An exciting October for opponents of DOMA, but whether it will bring trick, or treat, remains guesswork at best.

About The Author

Joseph J. Shepherd represents corporations, institutions, individuals and employers in a variety of entertainment, employment, investment and family-based immigration matters. He has significant experience advising U.S. employers in H-1B/LCA compliance issues, including those involving changes in corporate structure and government work-site inspections and investigations. He has authored an article on the subject titled “Preventative Lawyering: Navigating H-1B,” published in the American Immigration Lawyers Association's New Members Division Newsletter. Mr. Shepherd also has substantial experience preparing immigrant and nonimmigrant visa petitions for artists, musicians, scientists and business persons of extraordinary ability, internationally-recognized athletes, intracompany transferees, advanced degree professionals, specialty occupation workers, treaty investors, NAFTA professionals and other business visitors.

Adam Francoeur represents clients in all areas of U.S. immigration law. Mr. Francoeur previously served as a staff attorney at the United States Court of Appeals for the Second Circuit, where he recommended judicial disposition to the judges on complex immigration issues such as relief from removal, federal civil procedure, and appellate procedure. In addition, Mr. Francoeur has experience advising corporate clients on immigration compliance issues

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