Yesterday, the Second Circuit Court of Appeals declared DOMA unconstitutional. While it’s the second federal appeals court to do so, it’s the first to rule that “heightened scrutiny” applies when the government discriminates against lesbians and gay men.
As James Esseks, the Director of the ACLU’s LGBT & AIDS project, says in his blog today,
“Under heightened scrutiny, courts will presume that government discrimination against lesbians and gay men is unconstitutional and will demand that government explain why it has to rely on sexual orientation. Under “rational basis review,” the lower level of judicial review that we’ve labored under for years, the government discrimination is presumed to be constitutional, and it’s the plaintiff’s burden to prove that it’s not…. If the heightened scrutiny analysis is adopted by the Supreme Court, it will revolutionize the gay rights legal world, forcing state governments to explain why they need to treat lesbians and gay men differently in their parenting laws, in their hiring and firing decisions, and in public schools all across the country.”
Heightened scrutiny sounds like an exciting prospect. This may be part of the reason Edie Windsor appears so happy in the video below. Watch it and hear Edie speak movingly about her partner below.