In its decision striking down the federal Defense of Marriage Act on Thursday, the US appeals court in Boston acknowledged that the underlying legal precedents supporting its opinion are far from clear.
The appeals court nonetheless went ahead and did something no other federal appellate court has done. It ruled that same-sex married couples have a constitutional right to receive federal benefits on an equal basis to benefits received by opposite-sex spouses.
The decision represents another landmark in the struggle for gay rights in the US. But it is not clear — even to the deciding judges in Boston — how the US Supreme Court will ultimately view the case.
“Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation,” Judge Michael Boudin wrote in the 28-page decision.
“We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case,” he said.
Thursday’s decision by a unanimous three-judge panel of the US Court of Appeals for the First Circuit came in three consolidated cases challenging the constitutionality of the Defense of Marriage Act.
A powerful affirmation, or a bridge too far?
Gay rights advocates praised the decision, while those supporting the traditional definition of marriage denounced it.
“Society should protect and strengthen marriage, not undermine it,” said Dale Schowengerdt, a lawyer with the Alliance Defense Fund.
“In allowing one state to hold the federal government and potentially other states hostage to redefine marriage, the First Circuit attempts a bridge too far,” he said.
Evan Wolfson, founder and president of Freedom to Marry, called the decision “a powerful affirmation that the so-called Defense of Marriage Act is an unconstitutional and unjust law whose days are numbered.”
Mr. Wolfson added: “This ruling will return the federal government to its historic role of respecting marriages performed in the states, without carving out a ‘gay exception’ that denies thousands of protections.”
The First Circuit panel stayed its ruling pending further appeals. Appellate lawyers may now either ask all active judges on the First Circuit to re-hear the case, or file an appeal directly to the US Supreme Court.
DOMA was passed by Congress in 1996 and signed into law by then-President Bill Clinton. It defines marriage as a union of one man and one woman.
The definition applies to more than 1,100 federal benefits, including who can file a joint tax return, and whether a federal worker’s same-sex spouse can be covered by government-provided health insurance.
Same-sex couples in Massachusetts filed suit charging the federal law violated their constitutional right to be treated equally compared to heterosexual spouses.
A federal judge in Boston declared DOMA unconstitutional in July 2010. In affirming that decision, the appeals court cited the Supreme Court’s evolving equal protection jurisprudence and a series of federalism decisions.
The high court ruled in favor of gay rights in 1996 and 2003, and the appeals court applied principles advanced in those and other cases to the DOMA challenge. In addition, the appeals court cited Supreme Court decisions protecting states from federal encroachment into areas the states traditionally regulate, like marriage.
The federal marriage defense law was enacted by Congress in part in an effort to prevent certain states from forcing other states to recognize same-sex marriages.
A federal ‘intrusion’
The appeals court said DOMA undercut state interests by imposing federal burdens on states like Massachusetts where same-sex marriages are fully recognized.
Federal involvement in marriage through DOMA is an effort by Congress to “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws,” Judge Boudin said.
This federal “intrusion” into an area of traditional state regulation requires judges to engage in a more rigorous examination of DOMA and its impact, the judge said.
The appeals court then compared the rationales offered by federal lawmakers and concluded that they did not provide adequate support to uphold DOMA.
“If we are right in thinking that disparate impact on minority interests [gay spouses] and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” Boudin wrote.
Although the decision establishes a constitutional right of gay married couples to receive equal federal benefits, the appeals court side-stepped the more central issue of whether there is a constitutional right to gay marriage itself.
The appeals court acknowledged that it was not challenging an existing Supreme Court precedent stemming from a 1971 decision of the Minnesota Supreme Court in a case called Baker v. Nelson.
Two gay men sued Minnesota to force the state to allow them to marry. In rejecting their claim of a constitutional right to same-sex marriage, the Minnesota court said in part: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the Book of Genesis.”
When the gay men appealed their case to the US Supreme Court in 1972, the justices rejected the action in a single sentence: “The appeal is dismissed for want of a substantial federal question.”
In supporting his decision, Judge Boudin wrote that the Supreme Court has embraced a more protective posture toward minority groups that have long been victims of discrimination, such as gays and lesbians. The high court has also embraced a more protective posture in federalism decisions protecting the rights of states against federal encroachment.
“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 said.
“One virtue of federalism is that it permits this diversity of governance based on local choice,” he added, “but this applies as well to the states that have chosen to legalize same-sex marriage.”