Section 3 of the Defense of Marriage Act -- the federal definition of "marriage" and "spouse" -- is unconstitutional, a federal appeals court in Boston ruled today. The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management and Massachusetts v. United States, is the first instance of a federal appellate court striking down any portion of the 1996 law.
Writing that "Supreme Court review of DOMA is highly likely," the appeals court has stayed, or put on hold, the implementation of its decision pending any appeal.
Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: "[M]any 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. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."
[For more, read: "News Analysis: The DOMA Decision Is A Narrow One -- Which Could Be Key at the Supreme Court," also by Chris Geidner.]
The decision follows oral arguments that were held in the cases on April 4. Today's decision upholds U.S. District Court Judge Joseph Tauro's July 8, 2010, decision finding the federal law defining marriage as consisting of only one man and one woman to be unconstitutional.
In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Department of Justice Civil Division Chief Stuart Delery and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey.
Because DOJ stopped defending Section 3 of DOMA in February 2011, the House Bipartisan Legal Advisory Group -- controlled 3-2 by Republicans -- voted to defend the law. Paul Clement, a lawyer for Bancroft PLLC, was hired to do so, and was the sole lawyer defending the law in Boston on April 4.
Although some of the parties seeking to strike down the law had urged that the court apply a form of "heightened scrutiny," similar to the examination courts make to laws classifying people based on race or sex, for example, the court held that it was limited by its own earlier decision in a "Don't Ask, Don't Tell" challenge, as well as the fact that the U.S. Supreme Court has not chosen to use a higher standard of review yet.
In the absence of heightened form of scrutiny, courts traditionally seek only a rational basis to uphold the validity of a law. Looking at a series of cases that "stressed the historic patterns of disadvantage suffered by the group adversely affected" -- most recently, the Romer v. Evans challenge to Colorado's anti-gay Amendment 2 -- the court noted another route: "These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered."
Applying this standard -- sometimes called "rational basis with teeth" -- the court held that none of the potential reasons for upholding Section 3 of DOMA passed constitutional muster.
As to the federalism principles -- questions relating to the allocation of powers between and among the federal government and the states -- that were primarily advanced by Massachusetts in its case, Boudin wrote for the court, "In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded."
After examing the potential justifications offered by BLAG, the court held, "Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."
Boudin did so despite holding that the court "do[es] not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality."
Boudin was joined in the decision by Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, appointed by President Ronald Reagan.
White House press secretary Jay Carney said today of the decision, "There's no question that this is in concert with the president's views." He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.
BLAG will now need to decide if it wishes to ask all of the judges of the First Circuit to review the decision en banc -- which Bonauto noted in a conference call today is unlikely due to the fact that the small size of the court, five active judges, makes reversal extremely unlikely -- or whether it immediately move to ask the U.S. Supreme Court to hear the case in a process called certiorari.
A second DOMA challenge, Golinski v. Office of Personnel Management, is on appeal before the U.S. Court of Appeals for the Ninth Circuit is scheduled for oral arguments in early September. It was struck down by Judge Jeffrey S. White earlier this year. A third DOMA decision, in Dragovich v. Department of Treasury, was issued on May 24, striking down Section 3 of DOMA as it impacts the ability of same-sex couples to participate in a California pension fund program.
Additionally, Servicemembers Legal Defense Network has a pending challenge, McLaughlin v. Panetta, and the Southern Poverty Law Center has its own challenge, Cooper-Harris v. United States, challenging DOMA's application to servicemembers and veterans' benefits. Both are still at the trial-court stage.
READ the opinion: Gill-FirstCircuit.pdf
[Photo: Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, left, apeaks with reporters along with Massachusetts Attorney General Martha Coakley (D), right, and her Civil Rights Division chief, Maura Healey, outside the John Joseph Moakley U.S. Courthouse in Boston on April 4, 2012. (Photo by Chris Geidner.)]
[NOTE: This post was updated and expanded, with the most recent update at 1:05 p.m.]