Bench Memos

Some Commentary on First Circuit Ruling Against DOMA—Part 1

Now that I’ve quickly summarized the First Circuit ruling, I’ll offer some observations (here and in a Part 2 post):

1. This case is headed for the Supreme Court and, as the First Circuit panel itself notes, Supreme Court review is “highly likely.” (There is no reason for the House of Representatives, the party defending DOMA, to seek en banc review. Among other things, the three panel members make up a majority of the five judges currently in active service on the First Circuit.) If, as I expect, the Court grants review, a ruling on the merits should be issued by the end of June 2013.

2. The First Circuit panel acknowledges that it is attempting “to discern the direction” of competing Supreme Court precedents whose rationales are “open to interpretation.” (P. 11.) That task is in part backward-looking (trying to parse the precedents) and in part forward-looking (trying to anticipate how the Court itself will read those precedents). As the panel puts it, “only the Supreme Court can finally decide this unique case.” (P. 11.) So I won’t declare with confidence that the panel will be proven wrong in its discerning/concocting a level of “intensified scrutiny” even in the absence of a suspect classification.

3. For present purposes, I’ll assume that the panel is correct in its core assertion that “[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.” I believe that the panel makes several errors in determining that this “intensified scrutiny” standard applies to DOMA and in applying the standard:

a. Throughout its opinion, the panel offers a sloppy and one-sided account of DOMA. DOMA, we are told, operates “to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.” (P. 6.) It purportedly has “adverse consequences” for same-sex couples who choose to marry and for states that “choose to legalize same-sex marriage.” (Pp. 7, 8.) It “will penalize” same-sex couples. (P. 18.) It “burden[s] the choice of states” to adopt same-sex marriage.

But what does all this tendentious rhetoric really mean?

DOMA, which was enacted before same-sex marriage was legal in any state, does not prevent same-sex couples from marrying in any state that allows them to, nor does it prevent any state from legalizing same-sex marriage.

It is true, of course, that DOMA denies the federal benefits of marriage to same-sex couples. That denial may deprive such couples of an additional incentive to enter into a marriage. And those who regard that denial as an injustice will obviously resent it. But the panel’s characterization that DOMA will have “adverse consequences” for same-sex couples and “will penalize” them smuggles in a baseline that assumes that same-sex couples have the same right to marriage as opposite-sex couples. Thus, while the panel purports to be abiding by the Supreme Court’s 1972 ruling in Baker v. Nelson (see point 1 of my summary post), it in fact isn’t doing so.

Likewise, it is true that a state that legalizes same-sex marriage and that extends its redefinition of marriage to federal programs may jeopardize its receipt of federal funding. But the state knows that in advance and makes its choices in that light. More broadly, there is no genuinely neutral position that the federal government can take in defining marriage for purposes of provisions of federal law: If the federal government incorporates each state’s definition of marriage, it necessarily compels those states that retain traditional marriage to subsidize federal benefits for same-sex married couples in those states that legalize same-sex marriage.

b. The panel’s federalism concerns (pp. 19-23) are entirely misplaced. The panel asserts (as though it’s making a concession):

It is true that 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.

But this proposition is not true. The definition of marriage for purposes of provisions of federal law is inherently a federal matter. That the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law doesn’t alter that fact.

Further, as stated at the end of my point 3.a, there is no genuinely neutral, federalist position that the federal government can take in defining marriage for purposes of provisions of federal law.

More to come.

Most Popular


Two Truth-Tellers, Brave as Hell

Yesterday, the Human Rights Foundation hosted an event they called “PutinCon” -- a conference devoted to the Russian “president,” Vladimir Putin: his rise and his deeds, both at home and abroad. Participating were both Russians and well-wishing foreigners. It was, above all, a day of truth-telling -- a ... Read More
Economy & Business

The Swamp: Navarro Nucor Edition

The Wall Street Journal has a story today about the ties between President Trump's trade adviser, Peter Navarro, and the biggest steel company in the U.S. -- Nucor Corp. It is particularly interesting in light of the stiff steel tariffs successfully pushed by Navarro, which he championed ever since he joined the ... Read More


EMPIRICAL   As I can fathom neither endlessness nor the miracle work of deities, I hypothesize, assume, and guess.   The fact that I love you and you love me is all I can prove and proves me. — This poem appears in the April 2 print issue of National Review. Read More
Politics & Policy

Rolling Back Dodd-Frank

The Senate on Wednesday passed a bill that would roll back parts of Dodd-Frank. The vote was 67–31, with 17 members of the Democratic caucus breaking party lines. If the legislation passes the House and is signed, it will be the largest change to the controversial financial-reform package since it became law in ... Read More
Politics & Policy

Samantha Power Regrets

‘I’ve had a lot of bad ideas in my life,” former U.N. ambassador Samantha Power tells Politico. “Though none as immortalized as that one.” Wow. It’s a major concession. And what might “that one” be? Not standing idly by in the White House while Iranians protested a fixed election in 2009, then ... Read More