Some thoughts on the Massachusett and Gill appeals ruling

Timothy Kincaid

May 31st, 2012

Some initial thoughts upon reading the ruling (supplemental to Jim’s excellent write-up)

1. “…the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.”

You can almost hear the sarcasm dripping off the page of the ruling. Basically, he’s saying that it’s hard to assess the rationale when there was little rationale at all. Later Boudin rejects the presumption of ill intent, but it’s clear that he was not impressed by the thoughtless way in which the bill was enacted.

The rush to pass DOMA coupled with the premise that “everyone knows marriage is a man and a woman” plus the wisdom of some legislators not to go on record with any legal arguments in its favor may have proven to be its downfall. Having almost no hearing on the matter limited the number of possible benefits of the bill that were proposed.

2. It’s a bit interesting that the court tossed out the rational v. heighten review analysis. Instead they found a new methodology of thinking which applies intensified scrutiny to “historically disadvantaged and unpopular” groups, whether or not they have been assigned suspect classification.

This is fascinating and (political junkies, this is for you) an interesting take on the Republican think tank arguments that law and policy ought to be blind to group politics. (This sounds contradictory, so stick with me). It sounds a bit like Boudin is saying that matters should not be based on whether the group before him is a traditionally recognized minority as approved by court precedent, but whether they are a group that has experienced disadvantage.

If so, this is a rather significant legal shift. If this stands, it could be a huge legal precedent to any group that experiences hostility based discrimination.

3. This is the first time that courts have addressed Federalism in relation to DOMA. I’ve long thought this was the strongest line of argument, but the First Circuit did not see it those terms. It may not have been as compelling to the court as I have thought, but it is nevertheless a consideration and increases the intensity of the review.

“…but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

4. Evidently some of you have been invading Judge Boudin’s dreams because the following statement is quite similar to comments made here with regularity:

The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.

Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

Darn those radical activist judges for using straight-forward logic.

5. I learned a new word: encomia.

n. pl. en·co·mi·ums or en·co·mi·a
1. Warm, glowing praise.
2. A formal expression of praise; a tribute

6. The court lays out the only way in which DOMA is permissible: blind deference.

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.

7. And again the matter is stayed.

Yes, this is the correct and proper action when a case is unquestionably going to be appealed up the ladder. But it truly is frustrating and is a hardship on real families. And I rather doubt that it will be any time soon that DOMA finally reaches its (rather likely) death.


May 31st, 2012

However, it’s straight on to the Supreme Court now: the full court is only 6 judges, so an en banc hearing would be pointless.


May 31st, 2012

This phrase – “or prevent a woman partner from giving birth to a child to be raised by both partners.”

Why didn’t he say wives? By both wives. They are married, that is what the case is about.

Also in another section of the opinion he does NOT say sexual ORIENTATION he says Sexual PREFERENCE. By deliberately using the word “preference” he diminishes homosexuality as merely a “choice” I did not like that at all.

Timothy Kincaid

May 31st, 2012

SG –

I think you may possibly be finding insult where none is intended. Judge Boudin didn’t say “wives” because DOMA stops them from being wives and forces them to be just “partners”.

His point is that DOMA may indeed prevent them from being wives but it doesn’t stop them from raising children together. And therefore the idea that stopping them from being wives somehow is necessary because of children has no logical basis.

This guy wrote a compelling ruling which sided with us in very strong terms. And this section, in particular, is a complete slap-down of NOM’s entire media campaign. I really don’t think that he’s anti-gay; if so, he would have had plenty of excuses to rule against us.

(I agree that “preference” is a term that should be dropped. But I still hear it from our allies and even from some gay people. That a 73 year old straight man uses it probably isn’t an indication of deliberate insult.)


May 31st, 2012

Let’s not forget that in point 4, Boudin’s reasoning was exactly that of Rob T’s post from yesterday. The sentence that unfortunately used “preference” was speaking to the just-beneath-the-surface assumption of the antis that if you just make it hard enough for same-sex couples to marry, they’ll have an incentive to turn straight. That’s the first time I’ve seen it confronted explicitly in a ruling.

The standard of scrutiny they used isn’t all that new; it’s been around since Moreno in the early seventies. It’s commonly called “rational basis with teeth”. It’s the same standard used in Romer and officially used in Lawrence (some argue that the SCOTUS actually applied intermediate scrutiny in the latter while pretending not to).


May 31st, 2012

Well Timothy, I am going to sent a letter to the Judge and tell him about using the word preference.

I kinda disagree with you about the word wives. In fact in Massachusetts, which is what and where this court case is about, legally they are wives. Why is he diminishing the women by not recognizing their marriage and instead only calling it by partner?

I am not going to do a mean letter, but rather a persuasive one, but this is the first ruling I have read where sexual minorities are referred to as having a “preference”

I doubt that he did it thoughtlessly, but if it was, by the time he is done reading my letter he will know that it was a thoughtless way to refer to a person’s sexual orientation. And if it was done purposefully he will know that I an all sexual minorities reject that. Again I’ll be nice but I am going to write a letter. I always try and do something when I see a wrong.

Timothy Kincaid

June 1st, 2012

Straight Grandmother,

I think it is great that you write a letter. I really do.

But before you do, please do a little bit of research on the subject. And please check in with some activists whose opinions you respect.

Until fairly recently it was the term that the gay community used. It wasn’t intended to say that gay people choose to be gay. And as we came to see that implication, we moved to orientation.

But not everyone got that memo. Within the last month I read a passionate appeal in a newspaper for people to stand up against bigotry and let people marry whomever they love no matter their sexual preference. Sure it wasn’t the best word choice, but their heart was so with us I couldn’t be upset.

(A similar thing I still hear is, “people should be able to marry who they choose to love” which also really means well but carries baggage.)

My take on this is that Judge Boudin thought he was using the appropriate and socially accepted term. In fact, I think he would be surprised that amidst this ruling which is so valuable to our community and which so thoroughly refutes what our detractors claim, that someone is upset by the term he used.

But don’t take my word for it, ask around. And if what I said is echoed by others you respect, perhaps it would be more appropriate to write a letter of thanks for this judge ruling for equality. And perhaps as a minor “by the way” you could let him know that “sexual orientation” is preferred over “sexual preference”.

But really I think that appreciation for the ruling should far outweigh any possible lack in etiquette.


June 1st, 2012

Rational basis plus is not new. It’s taught in law schools and essentially what Lawrence v. Texas used (though that case went out of its way to not clarify the what they actually used)

Jay Jonson

June 1st, 2012

It is not true that this is the first time in a DOMA case that federalism was addressed. Indeed, it is central in Judge Tauro’s opinion in the Commonwealth of Massachusetts case. He declared DOMA unconstitutional on the basis of the Tenth Amendment (as wall as equal protections grounds in the Gill case). However, the First Circuit reverses Tauro in regards to the Tenth Amendment. They use federalism only in a very narrow way. This decision in effect lessens the significance of federalism rather than emphasizes it.

This is interesting because Roberts is thought to be a possible sixth vote against DOMA because of his interest in federalism. It may be that Tauro had him in mind in evoking the Tenth Amendment. It may also be that Boudin had Roberts in mind and wanted to evoke federalism without putting Roberts on the spot, especially with the idea that federalism (which even Alito and Scalia are supposed to espouse) means that DOMA must be striken.

Priya Lynn

June 1st, 2012

I can’t wait to see what kinds of irrational excuses Scalia is going to come up with for retaining the “defense” of marriage act.

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