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Federal Court: Gays and lesbians are a minority group deserving of special protection

By David G. Savage, Tribune Washington Bureau –

WASHINGTON — A federal appeals court in New York struck down part of the Defense of Marriage Act on Thursday and became the first to rule that gays and lesbians are a minority group deserving of special protection from discrimination under the Constitution.

The judges of the 2nd Circuit Court of Appeals in Manhattan joined a growing list of judges in New England and in California to conclude that the U.S. government may not deny equal treatment to legally married gay couples.

In the case decided Thursday, the judges said Edith Windsor, an 83-year-old widow, cannot be forced to pay $363,000 in federal estate taxes after the death of her partner of 44 years. The two were married in Canada and lived in New York, one of six states where same-sex marriage is legal.

These decisions invalidating DOMA, while significant to thousands of same-sex couples, focus on the rights of same-sex couples but do not say whether gays and lesbians have a constitutional right to marry.

But in its opinion, the 2nd Circuit is the first to set out a constitutional framework for deciding that official discrimination against gays and lesbians is like discrimination against women or racial minorities and generally forbidden by law.

“Homosexuals have suffered a history of discrimination,” said Chief Judge Dennis Jacobs for a 2-1 majority. And while gays have been winning political victories, they are still subject to a series of discriminatory laws, he said. Jacobs was appointed to the court by former President George H.W. Bush.

The appeals court concluded that official discrimination against gays and lesbians should be subject to special scrutiny, like discrimination based on gender. Judged under this standard, discriminatory laws are usually struck down.

The Supreme Court is expected to take up the DOMA issue later this year and finally rule on its constitutionality early next year.

The Obama administration has refused to defend the law in court. Instead, the House Republicans have funded the defense by using private lawyers.

House Democrats this week faulted the Republicans for spending $1.5 million in legal fees to defend DOMA.

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