Why the Obama Administration Must Appeal DOMA Rulings

Jim Burroway

July 10th, 2010

I know. That headline is heresy. But there’s the thing: the two rulings declaring the “Defense of Marriage Act” unconstitutional only apply to Massachusetts. It’s a great win for LGBT couples living in the Bay State, but it’s meaningless everywhere else.

As it stands, there are only three ways to get rid of DOMA nationwide. Barring appeals by Obama’s Department of Justice, the first option is to get another forty-nine sets of similar rulings by federal judges in forty-nine more states. While it’s true that these Massachusetts rulings would serve as a precedent for subsequent rulings by other federal judges, those judges aren’t bound by them in the same way they would be a Supreme Court ruling. So the practical message the Obama administration would be sending if they chose not to appeal this case would be, “Congratulations, now go win 49 more. (And keep going if you want D.C., Puerto Rico and the other territories.)” I just don’t see that happening.

The second option is to overturn DOMA in Congress. I think that would be the preferable solution, but we know how controversial that would be. As archaic as everyone thought anti-sodomy laws were, they were still in force in 14 states just seven years ago before Lawrence v. Texas finally struck them down. Hate crimes legislation and repealing “Don’t Ask, Don’t Tell” are also non-controversial according to public opinion polls, but we still see how difficult that has proven to be in the most LGBT-friendly Congress in history. We hardly need to remind ourselves that same-sex marriage is in a whole different league of contentiousness, as every single public referendum on the issue has painfully shown us time and time again. With the next Congress likely to be much more hostile to LGBT issues as this Congress, I’ve got lottery tickets with better odds than Congress repealing DOMA.

So that leaves the U.S. Supreme Court as the best option. Not a great option, but the best one. The path is still tricky, and it’s unclear how a majority might be put together to support these decisions. But these decisions are the marker against which future appeals will be decided, and that will happen only if those appeals are heard. The next step is the 1st Court of Appeals, then the Supreme Court, with the hope that the Supreme Court agrees to hear the cases should the Appeals Court overturn the lower court’s decisions. This could be Bowers vs. Harwick all over again, or it could be another Lawrence. But wherever it goes, the train has left the station. We’re either on board or not.

Update (Jul 11): Gay and Lesbian Advocates and Defenders (GLAD), the folks behind Gill v OPM has released a thorough set of FAQs (PDF: 264KB/8 pages) answering many of the questions asked by BTB readers in comments.

Richard W. Fitch

July 10th, 2010

The immediate ‘knee-jerk’ of many was to say – Petition the Obama administration not to appeal this decision. It’s comforting to know that clearer heads see the fallacy of this approach. The most affective path will be to SCOTUS, even though it is risky at this stage.

Other Fred in the UK

July 10th, 2010

A question for the lawyers: can Obama ask the Supreme Court to either confirm or over-rule the District Court’s judgement, can he lodge an appeal but offer no evidence or would he need to make a ‘real’ appeal?


July 10th, 2010

@Other Fred – The SCOTUS is not empowered to make those types of rulings. It has to be a ‘real’ appeal.


July 10th, 2010

Well said, Jim. I agree completely.

There was also an article in the Arizona Daily Star today that pointed out we probably don’t want a Justice Department that picks and chooses which laws to defend. It’s their job to defend all of them, no matter what the current administration thinks. Otherwise, we might find, say, hate crimes legislation not defended when a more LGBT-hostile administration is in place.

Regan DuCasse

July 10th, 2010

Can the question be brought up in court that the ‘defense’ is actually DEFENDING anything?

DOMA was sponsored and written by people many times divorced and signed by an adulterer.
If it can be proven in court that the integrity of marriage isn’t protected by this, and in fact, has no bearing on the intents and purposes of marriage otherwise, shouldn’t it be thrown out anyway?

Where’s the merit that justifies it?

Timothy Kincaid

July 10th, 2010


I see the merits of your argument, but there is also another possible approach.

Setting aside, for a moment, the idea of not defending all laws (something for which there is precedent), there are some pragmatic things to consider.

First, a individual court-by-court approach would not be in 49 states at this point, it would be in six other states, one being in the same Circuit.

If this decision is appealed, we could lose. OK, there is very little legitimate argument to defend the constitutionality of the usurping of states rights in matters of family law for no other reason than, as Lisa Kudrow says in The Opposite of Sex, “This is America, we don’t like sodomy so much here.”

But we could lose. And that is a very very big loss. Maybe decades worth of loss.

If this is not appealed, we have a toehold. And, to an extent, precedent.

And not appealing could give a breathing space, a time to cool off and see whether letting gay people file joint taxes or get buried in vereran cemetaries causes the earth to shift on its axis and the stars to fall from the heavens.

Perhaps after a short break, I would think that the next step is that New Hampshire sues. If I understand law correctly (which I may not), precedent is strongest in the same circuit.

And if two judges rule similarly, then we have strong precedent for other federal judges to do the same. Eventually it becomes de facto law, unenforceable on the presumption that it is unconstitutional. And at some point out there it’s repealed.

And with this approach, regardless of other outcomes in other federal courts, at least we have one full marriage state.

Additionally, suppose that the DOJ comes out and announces that they can’t find any constitutional scholars who disagree with the decision. And so they will not be mounting a defense against other states (Yeah, I’m dreaming).

I’m not saying that you are wrong or that an appeal would not be best. I’m just offering an alternative path to consider.

Timothy Kincaid

July 10th, 2010

And, Jim, I disagree with this:

This could be Bowers vs. Harwick all over again, or it could be another Lawrence.

This does have the potential to be Bowers, in that it could block gay couples from federal recognition everywhere in the US. That means NOWHERE to petition for spousal immigration or to file joint taxes of to get social security recognition, etc.

However, it does not have the potential to be Lawrence. This cannot grant marriage equality to all gay Americans.

If we win at SCOTUS it will only affect seven states. No one in Montana, for example, would be impacted by a win in SCOTUS. Not even California or Oregon. This only effects Section 3 of DOMA and only states with marriage equality would be impacted.


July 10th, 2010

And surely–even if DOJ files an appeal–what justification could there be for the continued silence of the White House on the ruling?

After all, Candidate Obama repeatedly say he wanted to repeal all of DOMA, not just Section 3. What, therefore, would be the reason for the President not issuing a statement (like Pelosi did) welcoming the decision?

Mark F.

July 10th, 2010

I suggest a Congressman introduce a section repealing only Section 3 of DOMA at this time. This would preserve “state’s rights,” but help a number of gay couples and would stand a better chance of passing than full repeal.


July 10th, 2010

Question. If the ruling stands, does that mean the Feds have to recognize every gay marriage that’s registered in the state, even if the couple aren’t citizens of MA?


July 10th, 2010

Jon, my question exactly.

John in the Bay Area

July 10th, 2010

Obama has already demonstrated a great deal of contempt for gay people. From a political point of view, I think that it would be far less damaging for him to let this one go. The extremely weak (and inconsistently applied) arguement that the administration must defend every federal statute does not require appeals in lost cases.

I would rather him let this stand, let MA married couples get federal benefits, and demonstrate how much of a non-issue the provision of equal rights to same sex couples could be.

Jim Burroway

July 10th, 2010


Of course, if a Federal judge in Connecticut were to rule rule differently than the Massachusetts judge, then you would have the untenable situation where people in Massachusetts have access to Federal rights, benefits and obligations, while people in Connecticut, just across the state line but in a different circuit, do not.

Yes, pushing this case to the Supreme Court has its risks, but I think it is much less risky than the California case. After all we aren’t asking the Supreme Court to actually demand marriage equality, just overturn DOMA. And part of that argument is based on the 10th amendment of the Constitution. Conservatives understand very well that DOMA is on very shaky ground. That was the whole argument behind putting the Federal Marriage Amendment into the Constitution. They feared that DOMA would be overturned precisely because of the 10th amendment, which is why they kept saying that DOMA wasn’t enough.

Yes, if we lose, then we’ve probably lost the chance to overturn DOMA for a generation. But I think we are at least a generation away from repealing it in Congress. It’s a pipedream to think that we could put a majority together in the House and a fillibuster-proof majority in the Senate.


July 11th, 2010

If you let the ruling stand, it currently only applies to Massachusetts, but the findings can be persuasive to other court cases. It would mean finding a half dozen more similar circumstances and appealing case-by-case. And then with this having been established as not bankrupting the country (remember, that one of the ODOJ’s arguments is that if they have to recognize same-sex marriages we will all by our little minority-some bankrupt the entire country at a time when people are very nervous fiscally).

I’d be much more comfortable with leaving it stand than sending it to the SCOTUS. The only lawyer I think has a chance there is Olson, as we absolutely must win over Kennedy. The other four are lost no matter what.

There is no chance of the SCOTUS going even 6-3: Roberts, Alito, Scalia, and Thomas are all bigots of the first order. The only chance is a 5-4 with Kennedy coming to the Light.


July 11th, 2010

…But wouldn’t a “win” for the selected states also mean a win for the principle of having all other states having to recognize marriages performed in those select states under the Constitution, as it is DOMA which said that states did not have to recognize gay marriages?


July 11th, 2010

Also, how long do they have to file an appeal?

Jim Burroway

July 11th, 2010

Gay and Lesbian Advocates and Defenders (GLAD), the folks behind Gill v OPM has released a thorough set of FAQs (PDF: 264KB/8 pages) answering many of the questions asked by BTB readers in comments.

Jim Burroway

July 11th, 2010

And not appealing could give a breathing space, a time to cool off and see whether letting gay people file joint taxes or get buried in vereran cemetaries causes the earth to shift on its axis and the stars to fall from the heavens.

I know we both hope for this, but we both know that this hasn’t happened for anything else related to marriage. Massachusetts has had marriage equality for six years now, but every time it comes up, it’s all about how the sky will fall and children will fall into the chasms which will open up in the earth.

Timothy Kincaid

July 11th, 2010


To play devil’s advocate to myself, I’m not sure any more that the right wing is as bigoted as I used to assume… other than Thomas whom I suspect may believe that the Catholic Church should just run things. Scalia most definitely hates us, but he may hate “encroaching big government” more.

I think that the jury is still out on Roberts and I have a hard time pegging Alito some times.


July 11th, 2010

I read the GLAD FAQ and still have a question, though I realize Jim or Tim may not know the answer. Is it possible for the Department of Justice to turn the defense of DOMA over to some external legal team in the same manner that Jerry Brown and Arnold declined to defend the Prop 8 case in Calif.? That way Obama could keep his hands clean and please gays yet the ruling would be valid for more than Mass.


July 11th, 2010

Before we get to confident in a 5-4 decision from SCOTUS, keep in mind that it’s possible that Kagan would recuse herself from this case.

John B

July 12th, 2010

This ruling presents an extraordinary opportunity to take another critical, incremental step forward. I hope the decision is not appealed, specifically because its impact is limited to Massachusetts. Marriage equality supporters (and I am one) are understandably impatient for the nationwide result we know will come sooner or later, but let’s be smart and accept progress when it appears.

Ideally, this ruling might make it possible for the federal government to recognize marriages in the few other states that have it, rather than forcing each of them to sue separately — but I don’t know if that’s possible, legally.

The administration should decline to appeal, while emphasizing the ruling’s limited scope, and present it as a minor step in the ‘social experiment’ in progress among the states. They should say that a ruling with national scope could prove too divisive, so the wisest course is to let this limited result stand.

This would probably upset people on both sides of the issue, for different reasons — perhaps an indicator that it is the most viable compromise right now.


July 12th, 2010

“I have a hard time pegging Alito some times”

Read his dissent in the CLS case. That’ll unpeg him for you.

Timothy Kincaid

July 12th, 2010


I did read that dissent. As I wrote at that time:

The dissent was not homophobic. Indeed, Alito seemed far less interested in why CLS was excluding members than he was in their right to do so without being marginalized based on their viewpoint. His was a freedom of expression argument rather than an upholding of morals and standards argument.

What about that dissent gave you insight to his judicial temperament? And what conclusions did you come to?


July 12th, 2010

Question for the lawyers…Is it possible for the Obama Administration to appeal the Massachusetts decision but NOT to ask for a stay. In other words to allow Same-sex couples in Massachusetts to enjoy full federal benefits while the case works it’s way through the courts. I would imagine that this would greatly increase our standing (not to mention, benefit many couples in Massachusetts or who chose to move there).


August 4th, 2010

I agree with this analysis;

I would rather see Obama appeal this ruling and take it to higher courts where it will impact more states.

The Supreme Court is ready to strike down Section 3 of DOMA.

(I’m not so sure they are ready to strike down prop 8, however.)

The legislature has potential to repeal DOMA in the next 10 to 20 years.

If the DOMA case loses at the Supreme Court;
DOMA will inevitably be repealed by the legislature.

The difference is;
the Supreme Court can strike down DOMA in the next 3 years.

The Legislature will take longer, but it will serve as a back-up plan if we lose at the Supreme Court.


August 15th, 2010

There are only 5 states (6 if the Perry case in California is upheld on appeal) where this matters currently. Forget appeals, let equality percolate for a while. We need more states on our side before a national attack is wise. If we force the issue to Scotus, there are two most likely outcomes:

1. we lose in SCOTUS, leaving a generation or more where the courts have decided against us. We should not rush.. Thurgood Marshall did his homework and prep to win Brown. He and the NAACP didn’t rush with out a plan into the courts.

2. The courts rule in our favor and the anti-Gay side pushes through a federal marriage amendment or worse, a constitutional convention.

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