U.S. 1st Circuit Strikes Down Defense of Marriage Act

In a May 31, 2012 opinion, the U.S. Court of Appeals for the First Circuit declared unconstitutional section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples. Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, No. 10-2204 (1st Cir. May 31, 2012). The specific language of Section 3 of DOMA is as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The Commonwealth of Massachusetts–which has permitted same-sex marriage since a 2003 decision of the Supreme Judicial Court of Massachusetts directed the state to allow gay marriage–had asked the court to declare the federal law void on multiple grounds, including that it violated the constitutional principles of equal protection of law and federalism. In siding with Massachusetts, the court observed that the U.S. Department of Justice took the position that, for equal protection purposes, DOMA should be evaluated under an intermediate level of scrutiny normally employed to legislation alleged to discriminate on the basis of gender. According to the DOJ, DOMA failed equal protection intermediate scrutiny but did not violate the principle of federalism. (Because the DOJ took the position that DOMA is unconstitutional, a group of Republican leaders in the U.S. House of Representatives known as the Bipartisan Legal Advisory Group, intervened to defend the law.)

The First Circuit declined to apply intermediate scrutiny in its equal protection analysis of DOMA, finding that “extending intermediate scrutiny to sexual preference classifications is not a step open to us.” Nevertheless, the court observed that in some cases involving statutes that adversely affect groups who have suffered “historic patterns of disadvantage,” the U.S. Supreme Court has invalidated the statute without either adopting a new category of suspect classification or employing rational basis review. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). As explained by the First Circuit, in those cases, the Supreme Court rested its invalidation of the statutes on “the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” In the case before it, the First Circuit concluded that the Supreme Court would not extend to DOMA he extreme deference accorded to ordinary economic legislation, … and without insisting on ‘compelling’ or ‘important’ justifications or ‘narrow tailoring,’ the Court would scrutinize with care the purported bases for the legislation.”

The court also opined that “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.” The court pointed out that although DOMA deals with an issue normally confided to the states–the determination of who may be married–the federal government does have “an interest in determining who counts as married” for purposes of a variety of rights and obligations under federal law. Nevertheless, the First Circuit concluded that “the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage.” For this reason, the court reasoned that “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.”

Reviewing the justifications for DOMA, the First Circuit wrote that one of the clearest stated reasons for the statute–the need to “preserv[e] scarce government resources”–actually weighed against upholding the statute because the adverse effects of DOMA are borne by “a historically disadvantaged group.” Likewise, according to the court, the purported interest in supporting child-rearing in the context of heterosexual marriage was not a basis to uphold DOMA because “DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage.” A third justification–expressing “moral disapproval of homosexuality”–could not alone justify legislation discriminating against a historically disadvantaged group. The court also found unpersuasive Congress’s expressed concern that state court judges might impose same-sex marriage on citizens of a state against their will. The court opined that “almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching.” The court concluded:

[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.

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