First Circuit Strikes Heart of DOMA

First Circuit Strikes Section Three of DOMA in Massachusetts Cases

On Thursday, May 31, the U.S. Court of Appeals for the First Circuit struck the main section of the Defense of Marriage Act in a unanimous three-judge decision. Ruling in two related cases, the panel said that the federal government’s refusal to recognize legal gay marriages from Massachusetts and elsewhere violated the equal protection rights of those married couples, and represented an impermissible intrusion into state affairs by Congress.

At the heart of the opinion, drafted by Bush One appointee Michael Boudin, was the lack of a common sense rationale for the statute. Boudin was sympathetic to lawmakers’ desire to preserve long standing tradition. But in the context of the last 50 years of legal precedents, he wrote, tradition alone was not enough to justify a law that strips hundreds of rights and benefits from a vulnerable class.

Boudin declined to analyze the statute with heightened legal scrutiny, noting that First Circuit precedent mandates that courts in the region evaluate gay rights claims under the lowest standard of legal review. That said, Boudin employed a more searching version of the low legal test (“rational basis plus” if you will) that falls somewhere in between the low and intermediate level of review.  

The decision was stayed, pending appeal by the House Republicans who are defending the 1996 law. The Obama Justice Department decided last year that sexual orientation discrimination was presumptively unconstitutional, and declined to support DOMA in court, passing the buck to the House. The House Republicans will have the choice of appealing to the full appellate court, or directly to the U.S. Supreme Court.

And now for the speculation. Striking Section Three of DOMA does not mandate national legalization of marriage. It merely requires the government to treat all legal marriages equally. Many Supreme Court observers think the nine justices could easily agree with Boudin’s panel and other federal judges who have ruled that government marriage discrimination is unconstitutional.

But take a look at the other federal case en route to the High Court. The Prop 8 case, which could indeed jeopardize the marriage laws of all fifty states, is now pending in the Ninth Circuit, where judges are deciding whether or not to accept a full court appeal.

If you were the lawyer for the House Republicans, which case would you want to see reach the Court first? Clearly, it would be the Prop 8 case, where marriage opponents have a much better chance of success. With that in mind, one would expect the House to appeal today’s decision to the full First Circuit as a delaying tactic. Such a move would also give the House two bites at the reversal apple, rather than one.

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