The 1st Circuit Court of Appeals in Boston has affirmed a ruling declaring the Defense of Marriage Act unconstitutional, bringing the case one step closer to an ultimate resolution at the Supreme Court.
In an opinion written by Judge Mike Boudin, a George H.W. Bush appointee and former deputy assistant Attorney General under Ronald Reagan, DOMA is found to violate the Constitution by denying federal benefits to legally married same-sex couples. Currently, eight states and the District of Columbia have marriage equality on the books, though the laws in two of them, Washington State and Maryland, are not yet in effect, and will likely be challenged in ballot measures in November. Maine may also have a referendum on marriage equality at that time.
The ruling says that DOMA interferes with a state’s ability to define marriage, quoting an old Supreme Court precedent that said “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Here is the key part of the ruling:
To conclude, 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. 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.
This only addresses Section 3 of DOMA. The provision that states without marriage equality do not have to recognize marriage ceremonies performed legally between same-sex couples in other states did not get addressed.
The Obama Administration stopped defending DOMA in court last year. The House of Representatives paid for a solicitor, with a mechanism known as the Bipartisan Legal Advisory Group (I don’t know that the enterprise is bipartisan beyond having that in the title). Paul Clement, the former Bush solicitor general, who also argued for the states on the constitutionality of the Affordable Care Act, was hired to defend DOMA. He lost the appeals court case today.
The entire 1st Circuit opinion for Gill v. OPM is available here. It’s fairly short and simple. There’s no question that this will get appealed up to the Supreme Court. I’d expect that case to get heard sometime in the next session. In fact, right in the opinion it says, “We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.” The question is whether Gill v. OPM will get combined with other challenges to DOMA.