Bench Memos

Some Commentary on First Circuit Ruling Against DOMA—Part 2

Numbering serially from my Part 1 post, I offer some further observations on the First Circuit ruling:

3.c. The panel’s dismissal of DOMA’s rationales hinges on its heightened standard of “intensified scrutiny.” Even then, the panel’s reasoning is faulty in multiple respects.

For starters, DOMA’s definition of marriage reinforces heterosexual marriage in obvious ways. The traditional male-female nature of marriage reflects the elementary biological reality that only heterosexual intercourse naturally generates children. The institution of marriage exists to maximize the prospect that children will be born and raised in stable and enduring families by the fathers and mothers responsible for their existence. Redefining marriage to include same-sex couples would permanently reorient the institution of marriage away from this central mission. Conversely, maintaining the traditional definition of marriage helps to promote that mission.

The panel somehow finds it significant that DOMA “does not increase benefits to opposite-sex couples.” (P. 26.) But given the fact that the federal budget is not unlimited, DOMA’s refusal to extend federal benefits to same-sex couples helps ensure that the government can in fact fulfill its commitments to opposite-sex couples.

The panel purports to address the House of Representatives’ supposed argument that (in the panel’s words) “Congress was entitled to ‘freeze’ the situation and reflect.” But the panel doesn’t fairly present the House’s actual argument: “Congress was justified in proceeding with caution in considering whether to eliminate a criterion—opposite-sex partners—that has been historically regarded as an essential element of marriage.” (See House Brief at 39-42.) Nor does it acknowledge the many Senate floor statements setting forth that rationale.

Indeed, in an apparent effort to minimize the bases for Congress to enact DOMA, the panel opinion simply ignores other rationales set forth in the House brief that were supported by floor statements, including the obvious federal interest in uniform eligibility for federal benefits. (See House Brief at 46-49.)

What this shows (and I could offer plenty of other examples, including the panel’s bizarre and ill-considered suggestion (see pp. 23-24 & n. 8) that Congress should have selectively exempted certain provisions of federal law from DOMA) is that beneath its surface evenhandedness, the panel’s consideration is heavily biased against DOMA.

4. Some have contended that there is a coherent way to strike down DOMA without also striking down the states’ traditional marriage laws. The First Circuit panel, paying lip service to the continuing precedential effect of Baker v. Nelson, purports to take such an approach. But (as I explained in my Part 1 post) it does so only by falsely positing federalism interests that DOMA doesn’t actually implicate. Further, its blithe dismissal of the many rationales for DOMA clearly would bode ill for state marriage laws.

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