Some thoughts on the Massachusett and Gill appeals ruling
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.