Dr. Jillian T. Weiss

What The First Circuit Appeals Court DOMA Decision Means

Filed By Dr. Jillian T. Weiss | May 31, 2012 6:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Commonwealth v. HHS, First Circuit Court, Gill, GLAD, marriage equality, Mary Bonauto, same-sex marriage

The United States Appeals Court for the First Circuit issued an opinion today affirming the striking down of Section 3 of DOMA, the Defense of Marriage Act, as unconstitutional. bigstock-Law-Book-4867196.jpgThis is wonderful news, but this is likely to be appealed to the United Supreme Court within the next few months, so it is not necessarily the final word. A decision from the Supreme Court will probably take a year or so. The First Circuit has stayed its opinion pending the outcome of the likely appeal. Thus, married same-sex couples in Massachusetts will not be able to take advantage of the decision just yet. You can read the 35-page opinion for yourself here.

I will lay out for you how we got here, and the Supreme Court process.

But first, a big congratulations and thank-you to GLAD and its cooperating attorneys, and the couples who are involved as plaintiffs! A toast!

Now for the nitty gritty.

Back in 2010, the United States District Court for the District of Massachusetts decided two cases on DOMA, one brought by GLAD, Gill v. Office of Personnel Management, and the other brought by the State of Massachusetts, Commonwealth v. Office of Personnel Management.

The first one, Gill v. Office of Personnel Management, was by a federal employee looking to get benefits from her employer. She couldn't because of DOMA. She said DOMA violated the equal protection of the laws, a violation of the 5th Amendment to the US Constitution.

The second one, Commonwealth v. Health and Human Services, was by the State of Massachusetts, whose definition of marriage is supplanted by DOMA. The State said Congress has no power to define marriage. The Administration said it did under the "Spending Clause" (Congress has the power to pay debts). The State also said DOMA violated the Tenth Amendment to the U.S. Constitution (powers not granted to the national government nor prohibited to the states are reserved to the states or the people).

The lower court agreed that DOMA was unconstitutional, the first court ever to do so. The appeal consolidated the two cases, so the First Circuit opinion covers both.

The District Court Opinions

As I discussed in more detail at that time, U.S. District Court Judge Tauro seemed to go to quite some lengths not to base his decision in the Commonwealth case on the sole ground that DOMA violates the Equal Protection Clause (no state shall deny to any person the equal protection of the laws). Instead, he discussed the question of whether Congress had the constitutional authority in the first place to enact such legislation. He decided that the constitutional authority identified by the Administration under the Spending Clause of the Constitution (Congress has the power to tax and spend) was not implicated by DOMA, and that DOMA violated the Tenth Amendment (powers not delegated to Congress by the Constitution are reserved to the State or the people) -- because of the Equal Protection Clause. It was somewhat convoluted, though the reasoning made sense after you read it a few times.

This reasoning has been jettisoned in its entirety by the First Circuit. Instead, it relies exclusively on the Equal Protection Clause.

In his Gill opinion, Judge Tauro relied explicitly on the Equal Protection Clause, which essentially says there must be a reason for treating people differently. He defined his job as limited to deciding if the classifications used by the Government are "rationally related to a legitimate government purpose." This is a low standard to meet, and government acts judged under the minimum standard of review are usually given the OK by the courts. But, surprisingly, Judge Tauro did not give DOMA a rubber stamp, but instead, he said DOMA was unconstitutional, even under the minimum standard.

Judge Tauro knocked down the four interests which Congress originally said in 1996 that it wanted to advance. He found that these four were not rationally related to DOMA, and the case of reasons 2 and 3 below, found them to be illegitimate purposes:

(1) encouraging responsible procreation and child-bearing,
(2) defending and nurturing the institution of traditional heterosexual marriage,
(3) defending traditional notions of morality, and
(4) preserving scarce resources.

Judge Tauro also knocked back the Administration's further reason for DOMA, that Congress has the right to preserve the status quo to ensure consistency of the definition of marriage.

The First Circuit Court of Appeals, affirming Judge Tauro's decision, disagreed with him slightly and used different reasoning that is very interesting constitutionally.

The First Circuit Opinion

The First Circuit's opinion today upheld Judge Tauro's decisions, but not his reasoning. Judge Tauro had used a very low standard for analyzing the constitutionality of a statute, called "rational basis review." Judge Tauro had found that, even under that low standard, the reasons given for DOMA did not make sense and were illegitimate in some cases.

The First Circuit said that, contrary to Judge Tauro's ruling, if "rational basis" review were used, it would have no choice but to uphold DOMA. At the same time, the court said that it was precluded from using the intermediate level of review, which the Obama Adminstration had indicated should be used regarding sexual orientation classifications, and based on which the Administration had refused to defend the statute. That intermediate level of review would have required DOMA advocates to show DOMA was "substantially related to achieving an important governmental objective," a more demanding test than the "rational basis review."

The court said it was precluded from using this higher level of scrutiny because it had previously rejected intermediate scrutiny in a Don't Ask Don't Tell case from 2008, Cook v. Gates, which was also based on the Equal Protection Clause. It also said that if it allowed intermediate scrutiny for "sexual preference" (oy vey), it would imply that all states had to allow marriage equality, which would contradict a Supreme Court precedent from 1974, Baker v. Nelson, in which the Supreme Court refused to take a marriage case "for want of a substantial federal question," and left standing a 1971 Minnesota Supreme Court decision that limiting marriage to heterosexual couples did not violate the Equal Protection Clause. Confused? So are a lot of legal commentators and courts, so you're in good company.

In any event, the First Circuit said that its review of Supreme Court precedents allowed it to use "intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications," and that "in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity." In so doing, the First Circuit neatly combined the concerns of equal protection and federalism to allow it to scrutinize DOMA more carefully, but not to violate its understanding of the precedents limiting the use of "heightened scrutiny." Have I mentioned that the law is somewhat of a word game?

The Court then proceeded to knock down the reasons given for DOMA, just as Judge Tauro did in the lower court. However, interestingly, it refused to say that these reasons were illegitimate because they showed "hostility to homosexuality," even though the legislative history of DOMA specifically says that it is to preserve "traditional morality," reasoning that this falls short of calling homosexuality immoral. Even though it acknowleged that some legislators made remarks calling homosexuality immoral, the court called these "selected comments from a few individual legislators," which could not taint a statute supported by large majorities in both Houses and signed by President Clinton. Really? Doesn't the Court remember the Jim Crow era, when legislatures became adept at coming up with all sorts of neutral explanations for statutes designed to discriminate against minorities?

The Court also issued a panegyric for "tradition," a la Fiddler on the Roof, saying that tradition is good enough reason for any law, but just not when it impacts minorities negatively or infringes on areas traditionally reserved to the states. What need then of Congressional powers constitutionally derived, when we have tradition? But enough carping. I applaud the decision of the First Circuit, and I hope that it will stand the test of the coming year, and perhaps, the test of time.

What Is The Effect Of The Decision Right Now?

The decisions only affect section 3 of DOMA -- the federal benefits part. It does not require interstate recognition of marriage equality. People married in Massachusetts will still get no respect in Florida.

The decisions also only affects people in the First Circuit, which covers Massachusetts, Maine, New Hampshire, Rhode Island and Puerto Rico. However, since Maine, Rhode Island and Puerto Rico don't have marriage equality, the decision wouldn't help anyone there at this time. Though I'm not certain about this point, the decisions are probably not retroactive, so that people who paid extra taxes or were denied federal benefits based on DOMA will probably not be able to get their money back.

So Far, GLAD Has Defied The Experts

It's interesting that experts had serious doubts about the viability of these cases, but, so far, GLAD has been proven right. Prof. Jack Balkin, of Yale Law School, had said in the New York Times when the lower court decisions came out "No chance they'll be held up on appeal."

Professor Balkin, who supports the right to same-sex marriage, had said the opinions ignored the federal government's longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group's case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.

"These two opinions are at war with themselves," he said.

The arguments concerning the 10th Amendment and the spending clause, if upheld, would "take down a wide swath of programs -- you can't even list the number of programs that would be affected," he said.

I disagreed with Prof. Balkin in my post at that time with a great deal of trepidation. But it turns out that his point was mooted by the fact that the First Circuit did not use the Spending Clause and Tenth Amendment arguments that the lower court had relied on and that he feared. So perhaps he was right, after all, and the First Circuit decided to avoid the issue by stepping back from those arguments relied upon by the lower court.

Off To The Supreme Court

GLAD held a conference call today for journalists and bloggers, and noted that the other side has 90 days to file a petition for certiorari, which the Supreme Court has the option to grant or deny, though experts think the petition will come earlier than 3 months from now. The plaintiffs will then have 30 days to reply, and there will likely be an October conference of the Supreme Court to decide whether to take the case. Four Supreme Court Justices have to agree to take the case in order for it to come up to the Supreme Court. Experts indicate that, because this case invalidated a federal law, and is likely to come up again in the future, that the Supreme Court will likely take the case.

I agree wholeheartedly with the statement of plaintiff Jonathan Knight, married to Marlin Nabors, who said on the conference call today "we try our very best to live our lives in truth and authenticity...We are thrilled to learn that the law is on the same page, and we are no longer second class citizens."

(Law book image via Bigstock)


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