The case was bought by a woman whose wife — wife, under New York law — had died. The surviving spouse wants to qualify for a deduction in federal estate tax law. Having the marriage unrecognized under DOMA cost this poor woman — who'd been with her partner for 44 years — $363,053 extra dollars in taxes.
Judge Dennis Jacobs, who wrote the majority opinion, said the federal law was “not related to an important government interest,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”ADDED: Here's the opinion (PDF). The language quoted above signaled that the court decided to heighten the level of scrutiny to what's called the "intermediate" level (below "strict" scrutiny and above "minimal" scrutiny), and in fact that is what I'm seeing in the text. The court recognizes that The Supreme Court has never explicitly raised the level of scrutiny. It was cryptic in Lawrence v. Texas, and it's nice to see the 2d Circuit openly take on the subject of whether to heighten scrutiny, instead of the usual bumbling along at the minimal scrutiny level:
1. Has this group "been historically 'subjected to discrimination'"? A "yes" here supports heightened scrutiny.
Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court...2. Does this group have have "a defining characteristic" that "frequently bears [a] relation to ability to perform or contribute to society"? This is a reason not to heighten scrutiny (and it explains why there is no heightened scrutiny for the mentally disabled and for the old).
The aversion homosexuals experience has nothing to do with aptitude or performance.3. "Is there obvious, immutable, or distinguishing characteristics that define them as a discrete group?" "Yes" here favors heightened scrutiny.
We conclude that homosexuality is a sufficiently discernible characteristic to define a discrete minority class.... [Defendants] argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap (for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define . . . a discrete group.”... What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest.... "[T]he Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.”4. Is the group “a minority or politically powerless"?
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. When the Supreme Court ruled that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories... The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,” including the presidency, the Supreme Court, and the legislature.... [I]t 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. 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....
Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”