Earlier today, a First Circuit panel issued a ruling holding unconstitutional section 3 of the Defense of Marriage Act, which defines marriage as “the legal union between one man and one woman as husband and wife” for purposes of provisions of federal law. The unanimous opinion, authored by Judge Michael Boudin (a Bush 41 appointee), adopts a curious line of reasoning and includes a mix of sound and unsound propositions. I’ll offer a quick summary of the opinion in this post, and I’ll reserve commentary for a follow-up post.
Here’s how the opinion proceeds:
1. The Supreme Court’s 1972 ruling in Baker v. Nelson summarily dismissed, for want of a federal question, an equal-protection challenge to a state’s refusal to recognize same-sex marriage. Baker remains binding precedent; it “does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” (Slip op. at 11-12.) [But see point 3.a here.]
2. The “competing formulas” of rational-basis scrutiny and intermediate scrutiny “are inadequate fully to describe governing precedent.” (P. 13.) Plaintiffs cannot prevail under the conventional rational-basis standard, and “extending intermediate scrutiny to sexual preference classifications is not a step open to us” under either circuit precedent or Baker. (Pp. 14-15.)
3. But “[w]ithout 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.” Plus, “in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” (P. 15.)
4. Gays and lesbians have long been the subject of discrimination. DOMA will “penalize” couples in same-sex marriages by “limiting tax and social security benefits to opposite-sex couples.” Therefore, the purported bases for DOMA need to be “scrutinize[d] with care.” (Pp. 18-19.)
5. “Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications.” “DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage.” While Congress “surely has an interest in who counts as married” for purposes of federal programs, and while DOMA doesn’t have the vice of commandeering the states, DOMA “does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage”: Massachusetts “stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws.” (Pp. 20-22.)
6. As for DOMA’s rationales:
a. The rationale of preserving government resources can’t justify a distinction that is “drawn against a historically disadvantaged group and has no other basis.” (Pp. 25-26.)
b. There is “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.” (Pp. 26-27.)
c. Although “[f]or generations, moral disapproval has been taken as an adequate basis for legislation,” Lawrence v. Texas “ruled that moral disapproval alone cannot justify legislation discriminating” against homosexuals. (P. 27.)
d. Congress didn’t simply “freeze” the situation, as DOMA has no expiration date and isn’t framed as a temporary measure. (Pp. 27-28.)
7. “[W]e do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” Preserving traditional marriage “is not the same as ‘mere moral disapproval of an excluded group,’ and that is singularly so in this case given the range of bipartisan support for the statute.” (P. 29 (citation omitted).)
8. “Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed.” (P. 32.) That is, DOMA continues in effect.