As DOMA goes down again, will ideological hack shyster Paul "Ohfer" Clement be kicking back any of that $1.5M?

"Severely conservative" U.S. Second Circuit Court of Appeals Chief Judge Dennis Jacobs -- once the subject of a Glenn Greenwald piece called "Dennis G. Jacobs: Case study in judicial pathology" -- wrote the 2-1 majority opinion declaring Section 3 of DOMA unconstitutional.

"[L]aw (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status -- however fundamental -- and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door."

-- Chief Judge Jacobs, in his ruling

by Ken

I suppose I shouldn't be making fun of ideological hack shyster Paul "Ohfer" Clement just because these days he loses every damn time he argues a case. And no, I'm not even thinking of the fact that I, alone with all U.S. taxpayers, am funding the $1.5M sinkhole House Speaker "Sunny John" Boehner has created to bankroll the Ohfer Man. (See my Tuesday post, "Does anyone believe the now-spent $1.5M is all "Sunny John" Boehner will ram through for the defense of DOMA ignorance and hatred?")

No, the reason why I shouldn't be making fun of Ohfer Paul in his bid to enter the Guinness Book in the category of Legal Loozars is that the way the federal courts are stacked now with sociopathic right-wing judicial grunge, the Ohfer Man could just as well be riding a string of decency-defying triumphs. You can't say that Sunny John was wrong to think it worth a roll of the dice -- especially since he's not paying for it.

Still, it's worth noting that the latest DOMA smackdown was issued by a conservative judge -- indeed, a "severely conservative judge," as Ian Millhiser describes the chief judge of the U.S. Second Circuit Court of Appeals in his ThinkProgress Justice post:

Chief Judge Dennis Jacobs is a very conservative judge. He joined a court decision effectively declaring corporations immune to international human rights law -- even when they “trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy.” And he once gave a speech to the conservative Federalist Society decrying the “anti-social effects” of attorneys providing free legal services to the less fortunate. [This last link, by the way, is to a Glenn Greenwald Salon piece titled "Dennis G. Jacobs: Case study in judicial pathology," which is blurbed: "The ACLU scores a big victory over government lawlessness, but the dissenting judge's ugly outburst speaks volumes."]

And yet, this severely conservative judge is also the author of an opinion striking down the unconstitutional Defense of Marriage Act. Even more significantly, Chief Judge Jacobs’ opinion concludes that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution.

Ian quotes this portion of Judge Jacobs's ruling (the boldface highlighting is Ian's):

[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically "subjected to discrimination," B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society," C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group," and D) whether the class is "a minority or politically powerless." Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Says Ian:

This is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an "exceedingly persuasive" justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

Ian records "one unfortunate caveat": that Second Circuit Judge Chester Staub, a Clinton appointee on the three-judge panel that issued the ruling (a mere three weeks after hearing oral arguments), dissented. Nevertheless, he says,

this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.

OF COURSE CONGRESS COULD SIMPLIFY LIFE
BY GETTING DOMA THE HELL OFF THE BOOKS

NY Rep. Jerry Nadler, you'll recall, is the author of the Respect for Marriage Act, which would show some actual respect for marriage by repealing the crap-brained garbage that is DOMA. Jerry, who happpens to be Edith Windsor's congressman (and submitted an amicus brief in the case), responded quickly to the Second Circuit decision. His office issued the following release:

Nadler Praises Federal Court for Striking Down DOMA in Windsor Case

WASHINGTON, D.C. -- Today, Congressman Jerrold Nadler (D-NY), the top Democrat on the House Judiciary Subcommittee on the Constitution, and author of the bill to repeal the Defense of Marriage Act (DOMA), applauded the decision released today by the Second Circuit Court of Appeals which found that "Section 3 of DOMA violates equal protection and is therefore unconstitutional."

"Now it's six in a row," said Nadler.  "Yesterday, we found out Speaker Boehner had already wasted $1.5 million taxpayer dollars losing five DOMA cases in a row.  Today, we learned that a sixth court has just ruled DOMA unconstitutional."

"As the amicus brief I spearheaded in this case pointed out, and as the court agreed, there is no justification for denying Edie Windsor the same right as all other spouses to her full inheritance without paying a tax penalty," continued Nadler.  "Edie lives in my congressional district, and was with her wife, Thea Spyer, for 44 years.  The last thing she should have to worry about following the loss of her spouse is an unjust tax penalty imposed for no other reason than the fact that she and her wife were the same gender.  Now is the time to stop defending this unjust law and repeal it once and for all.  I hope today's ruling brings us one step closer to that goal," Nadler said.

Congressman Nadler is the author of the Respect for Marriage Act to repeal DOMA, and spearheaded an amicus brief joined by 144 Members of Congress in the Windsor case.

The Second Circuit found Section 3 of DOMA, which defines "marriage" for the purposes of federal law as the union between one man and one woman, as unconstitutional.  It did so on the ground that laws like DOMA that discriminate against gay men and lesbians should be the subject to a standard of "intermediate scrutiny" and that DOMA could not withstand that standard of review.  This is particularly notable, as this decision, in Windsor, is the first decision by a Circuit Court to hold that classifications based on sexual orientation are subject to such heightened scrutiny, as opposed to the lower "rational basis" test.

Today's decision upheld the decision of the District Court for the Southern District of New York which held that the government's denial of the marital deduction to same sex spouses was unconstitutional.

Of course, just because it would be the right as well as smart thing to do doesn't mean there's any more likely today than there was yesterday that Congress will avail itself of the opportunity. The Senate won't even have to stand up and be counted, since the math in the House all says, "Gimme a break, no way in hell!" With all due respect to Representative Nadler, I doubt there are any more votes for DOMA repeal today than there were yesterday.

But some one of these days . . . .

#