The good news is the Second Circuit Court of Appeals ruled that DOMA is unconstitutional today, but the really good news is that the judge who wrote the opinion is an ironclad, batshit conservative.
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.
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.
If Judge Dennis Jacobs believes DOMA is unconstitional, surely the likes of Scalia and Thomas would agree. No?
Not coincidentally, Obamacare was also found to be constitutional by a number of very conservative judges before eventually being argued in front of the Supreme Court where it was ultimately upheld. And even if the minds of the more shady members of the Supreme Court can’t be swayed, it seems very likely the Supreme Court will find DOMA unconstitutional by a margin of 5 to 4 at the very least.
If that is the case, it would be awfully funny to consider the fact that Paul Clement, the man hired by Speaker of the House John Boehner to defend DOMA and who argued against Obamacare on behalf of the National Federation of Independent Businesses (NFIB), could lose two consecutive high-profile cases in front of the Supreme Court.
The Second Circuit Court of Appeals is the second federal appeals court to rule DOMA unconstitutional.