The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit. Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional. As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub, dissenting, the opinion turns the perceived ideological divide of the debate on its head.
Upon the first blush, more striking to me is the reasoning rather than the result. Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause. In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme. Determining that homosexuals as a class have “A)…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.” If his reasoning holds, homosexuality will be equivalent to gender and receive intermediate scrutiny rather than rational basis. Any classifications not allowed for gender would be equally suspect as applied to homosexuals.
Again, if this reasoning is accepted, the first class will be added to the semi-suspect or suspect classification in several decades. Eschewing rational basis with teeth for this decision, Judge Jacobs opens the door for one Supreme Court decision to alter a whole slew of federal laws. Under heightened scrutiny, all federal benefits denied to same-sex couples would likely fall, and fall quickly and easily. The precedents from the 1970’s and decisions regarding benefits for women versus men will pave the way. This decision is much bigger than DOMA.
 Judge Straub dissented essentially stating a classic restrainist rationale. This is a question for the people and their representatives not the courts.