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The Second Circuit is Second

October 18, 2012

The First Circuit was first – the federal Court of Appeals for the First Circuit, in Boston, was the first federal court of appeals to rule on DOMA, the Defense of Marriage Act. Last May, a three-judge panel of the First Circuit concluded that the portion of DOMA that prohibits the federal government from recognizing same-sex marriages is unconstitutional.

Today, another federal court of appeals weighed in: the Second Circuit Court of Appeals in New York agreed with the First Circuit. The ruling was 2-1, with George H. W. Bush appointee Dennis Jacobs joining Christopher Droney, who was appointed to the lower court by President Clinton and to the appeals court by President Obama. In dissent was Chester Straub, a Clinton appointee.

There are now five DOMA cases before the U.S. Supreme Court, plus the case challenging the California referendum that banned same-sex marriages. The Second Circuit decision came just three weeks after the case was argued.  Since decision times are typically much longer, it does seem like the Second Circuit judges wanted to have their say before the Supreme Court decides. By contrast, the Supreme Court seems to be in no rush.  The issue was fully briefed well in time for the Court’s first conference of the session, in late September. But none of the cases has even been scheduled for a conference, according to SCOTUSblog, the leading authority among Supreme Court watchers.

I have predicted that the Supreme Court will reject DOMA and hold that state-recognized same-sex marriages must be honored by the federal government; but that the Court will also reject the broader argument in the California case that the states are constitutionally required to recognize same-sex marriages.  A statement at the end of Judge Straub’s dissent in today’s decision illustrates my reasoning.

Judge Straub indignantly proclaims that the validity of same-sex marriage is not an issue for the judiciary to decide, it is “an issue for the American people and their elected representatives to settle through the democratic process.”  But that is precisely what the people of New York State and their elected representatives did:  they decided, “through the democratic process,” that same-sex marriages would be legal.  What DOMA says is that the federal government doesn’t care about the democratic processes of the states; the federal government isn’t going to recognize same-sex marriages regardless.

It’s that argument that I don’t think Justice Kennedy can swallow.  If I’m right, Justice Kennedy will side with the four liberals on the Court and overrule DOMA’s rejection of state-recognized marriages.

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