DOMA's Big Court Walloping

DOMA's Big Court Walloping
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A same-sex couple hold a sign calling for the right to marry outside the County Clerkís Office in Los Angeles.
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In a huge blow to supporters of the Defense of Marriage Act, the First Circuit Court of Appeals in Boston unanimously ruled today that the federal government has no "permissible federal interest" in denying federal benefits to same-sex couples. 

Judge Michael Boudin, who was appointed by George H.W. Bush, wrote in the court's opinion that Section 3 of DOMA, which defines marriage as between a man and a woman, is unconstitutional, upholding a lower court's decision from July, 2010.

"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," Boudin writes. "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."

The First Circuit's opinion didn't address whether there is a constitutional right to same-sex marriage – in the plaintiffs' cases, the couples were already married – nor did it "rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality." Rather, Congress's "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."

The court also determined that since it's highly likely that Supreme Court will hear the case, the outcome of its ruling is stayed until the higher court has a change to decide.

The Obama White House announced in February, 2011 that it would no longer defend DOMA in court, arguing that Section 3 of the law violates the Equal Protection clause of the Constitution. In cases where the Department of Justice declines to defend a federal law, House leadership votes as to whether or not to continue to defend it through the House Bipartisan Legal Advisory Group (BLAG). The Republican-dominated leadership elected to do so in a 3-2 vote, and are represented by former Solicitor General Paul Clement (who was also the attorney who argued against Obama's health care law before the Supreme Court).

House Speaker John Boehner's office declined to comment on the case, and Clement did not immediately return my request for comment. Minority Leader Nancy Pelosi, on the other hand, put out a statement today applauding the decision and calling BLAG's efforts "a single-minded effort by Republicans in Congress to defend discrimination at great expense to the American taxpayer."

In a conference call with reporters, Mary L. Bonauto of the Gay & Lesbian Advocates & Defenders (GLAD), who was among the attorneys for the plaintiffs, said that she thinks a Supreme Court appeal is likely – and likely to go in their favor. "We think this is a case that really could appeal to all members of the court, because it is not only a double standard, but as the First Circuit notes, and as we certainly argued in our brief, this law is a real outlier because it inserts Congress into an area that states govern. They determine who is married and who is not. And what we have with DOMA is the federal government disregarding those determinations for every single federal purpose, and also causing a real burden on states."

Bonauto made an interesting point about President Obama's endorsement of same-sex marriage, when asked whether she though it impacted the case. She said that it's tough to say in general if it did, but she "really heard the President as stating his personal support for marriage, and also really suggesting that the states continue to bat around the issue."

"For the most part," she said, "states decide on marriage eligibility, and [Obama] wants states to continue to do that. So I think if anything it just reinforced that the Congress is a real outlier here, because the Congress has really intruded on the states' prerogative." 

  This case is just one of several expected days in court for DOMA. One other case is currently on appeal before the Ninth Circuit after a lower court ruled it unconstitutional, and is set for oral arguments in September. Last week, a District Court Judge in California also ruled that Section 3 of DOMA is unconstitutional in a separate case.