Box Turtle Bulletin

Federal Appeals Court Rules DOMA Unconstitutional

The First Circuit Court of Appeals has ruled that Section 3 of the Defense of Marriage Act, the section that bars federal recognition of legal marriages granted by the states, is unconstitutional. The three-judge panel ruled unanimously to upholds Federal District Judge Joseph Tauro’s 2010 decision.

The decision is in response to two separate cases which were combined by the lower court. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to. The appeals court heard oral arguments for the two cases in April.

Judge Michael Boudin, a President George H.W. Bush appointee, wrote for the court:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

The court found that the plaintiff’s (Gill, Commonwealth) equal protection claims cannot stand up to rational basis. The Justice Department urged elevating the considerations of the case to a suspect class, but the Appeals court made clear that they were unwilling to establish that precedent in this case. They also found that doing so was unnecessary:

Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions–not classic rational basis review–that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).

In a move that is reminiscent of the Ninth Circuit Court’s ruling that Prop 8 was unconstitutional, The First Circuit was also careful not to consider claims that they felt were unnecessary, and thus narrowed the basis of the ruling. But in a departure from the Ninth Circuit Court, the first Circuit said that while they found DOMA unconstitutional, they did not rest any part of their ruling on claims of hostility to homosexuality:

In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. …The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity–not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

As is customary, the First Circuit panel stayed its ruling in anticipation of an appeal to the U.S. Supreme Court.