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DOMA: The First Circuit is First

May 31, 2012

The federal Court of Appeals in Boston ruled today that one of the two provisions of the Defense of Marriage Act unconstitutionally discriminates against same-sex married couples.  The decision was unanimous.  The opinion was written by Michael Boudin, who was a Reagan Justice Department official before his appointment to the bench by George H. W. Bush.  Judge Boudin was joined by Sandra Lynch, a Clinton appointee, and Juan Torruella, who was appointed to the District Court by President Ford and to the Court of Appeals by President Reagan.

The challenge was to section 3 of DOMA, which states that federal law will recognize as a “marriage” only a union between one man and one woman as husband and wife.  Section 2 of DOMA, which was not under consideration, provides that a state is not required to recognize a same-sex marriage legally performed in another state.

The Court of Appeals concluded that section 3 violates federal constitutional principles of “equal protection.”  “Equal protection “ does not mean that the law must treat all people equally.  The law treats different people differently all the time – one person is arrested while another person is not; one person pays more tax on her income than another person pays; one person can drink, or vote, or drive a car, but a younger person can’t.  “Equal protection” means that the law can treat people unequally only if there is a reason for it.

In constitutional litigation, the fight is often about how good a reason the law has to have in order to treat people unequally.  The courts have developed a range of answers to this question.  At one end, a law that treats people differently based on their race is subject to the most rigorous judicial scrutiny.  Race is considered a “suspect classification,” and a law that invokes a “suspect classification” must have a justification that is very strong, or “compelling.”  This is called “strict scrutiny.”  At the other end of the spectrum, a law that treats people differently based on their economic activity is subject to the most lenient judicial scrutiny.  So a state that requires plumbers to have government-issued licenses to do plumbing work is legit, even though that state might not require carpenters or bricklayers, for example, to be licensed.  This is called “mere rationality,” or the “rational basis” test.

These two extremes have been criticized as “outcome determinative.”  Since virtually any law can pass the rational basis test, and practically no law can pass the strict scrutiny test, deciding which level of scrutiny applies pretty much decides the case.  Same-sex marriage illustrates the point.  If DOMA is subject to “mere rationality” scrutiny, it might well survive; but if DOMA undergoes “strict scrutiny,” the DOMA goose is cooked.  The Obama Administration only decided that it would no longer defend DOMA after it determined that the appropriate level of judicial review was not “mere rationality,” but “strict scrutiny” – which would make the law indefensible.

And the argument for strict scrutiny in same-sex marriage cases is not a bad one at all.  Race was determined to be a suspect classification because race is an immutable personal characteristic, because racial minorities in this country have suffered a history of discrimination and worse, and because racial minorities lack the numbers (being minorities, at least for the time being) to redress that history through the regular political process.  A reasonably good argument can be made that sexual orientation meets the criteria for a suspect classification.

But the courts have been extremely reluctant for decades to add to the list of suspect classifications.  The result has been the development of a sort of middle-level scrutiny – not as forgiving as “mere rationality” but not as demanding as “strict scrutiny.”  That is what the Court of Appeals judges decided in today’s DOMA case.  They concluded that a middle level of scrutiny was justified because DOMA has important implications for American federalism, meaning the relationship and balance of power between the states and the federal government:  “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”

For 200 years before DOMA, marriage was regulated by the states, which were able to regulate marriage pretty much as they saw fit.  Once a state determined who could be married, the federal government treated them as married for purposes of applying federal law and regulations.  But by passing DOMA, the federal government decided that certain states’ choices about marriage would be given less respect than other states’ choices, which the court said is a burden on federalism, warranting a closer look at DOMA than “mere rationality.”

Having decided on the level of scrutiny to be applied, the court made quick work of DOMA.  Saving the federal government money (in this  case, money for spousal benefits to same-sex couples) is generally a rational basis for federal legislation, but “where the distinction [in the law] is drawn against a historically disadvantaged group and has no other basis,” saving money is not sufficient.  Supporting child-rearing by opposite-sex parents is irrelevant to DOMA, the court said, because DOMA provides no assistance to opposite-sex parents with kids.  And the court rejected the rationale of “moral disapproval” of homosexuality.

The First Circuit Court of Appeals thus became the first federal Court of Appeals to rule on the constitutionality of DOMA.  DOMA opponents have taken the lead, 1 – 0.

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