Friday, June 1, 2012

The DOMA decision: Clause 3 is unconstitutional

Yesterday, there was big news that the United States Court of Appeals for the First Circuit found DOMA unconstitutional.

The background: DOMA has two relevant clauses. One allows states to refuse to recognize legal same sex marriages performed by other states.  The second prevents recognition of legal same sex marriages by the federal government. Several cases are working through the federal courts that challenge the federal recognition clause (clause 3). The one in Massachusetts is a consolidation of several cases; the state of MA is a plaintiff in one of them because it is being forced to treat its same-sex married citizens differently. This case was first decided by a district court judge in 2010 and now the appeal has been decided by a panel of three judges from the First Circuit  Court of Appeals.

The three judges found unanimously that DOMA violates equal protection statutes. (Two of the judges are conservatives, appointed by Republican presidents.) The decision is narrower than the original district court decision (similar to the narrow decision we saw in the prop8 appeal). And, it has been stayed because the court expects this to go to SCOTUS.

As Chris Geidner writes,
While giving credence to several of the factors -- from sexual orientation discrimination to federalism -- that each independently were considered decisive by U.S. District Court Judge Joseph Tauro, the appellate opinion, written by Judge Michael Boudin, was a far more narrow ruling that decided the case on the sole grounds that Congress gave no rational basis for enacting the law.

The decision also takes down the argument that blocking same sex couples from marrying somehow strengthens straight marriages and promotes procreation.

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. 
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.

Many commentators think this narrow decision is more tailored to an eventual Supreme Court decision overturning DOMA, and making legally married gay couples married in the eyes of the federal government as well.  That will depend on whether the defenders of DOMA (the hired gun Paul Clement, of the misnamed Bipartisan Legal Advisory Group from Congress, since the DoJ won't defend it) appeal to the Supremes and are granted certiorari.

As one of those legally married couples, that would be very welcome.
(I am not a lawyer, though I enjoy thinking about constitutional law issues.  so please, any lawyers let me know if there are corrections required.)

<B>Updated </B> thanks to loyal reader and attorney Paul (A) who corrected some of my language.  

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