Final update 1:03 pm

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Without creating any new constitutional right for gays and lesbians to get married, the First Circuit Court on Thursday ruled that Congress did not have the power to intrude on the choice of states — like Massachusetts — to create such a right under state law.   In a unanimous three-judge panel ruling in Massachusetts v. Health and Human Services Department (Circuit docket 10-2204), the Circuit Court took a cautious approach that it said was based on recent Supreme Court precedents outlawing discrimination against minorities.

The ruling nullified Section 3 of the Defense of Marriage Act, passed by Congress in 1996 to deny any federal benefit to a same-sex couple, even if the spouses were legally married under state law.  This is one of the gay marriage cases now developing around the nation that may soon lead to one or more appeals to the Supreme Court, very likely in the Term opening October 1.  “Only the Supreme Court can finally decide this unique case,” the First Circuit commented.

If the new ruling withstands a likely appeal, it would actually affect only gay couples married in the six states and the District of Columbia that now allow such marriages, but it could serve as a constitutional precedent for challenging other limits or bans on gay marriage in any state.   The benefits at issue are keyed to legal marriages.  Whether all of those benefits would still be available if a legally married couple traveled to another state to live could depend upon whether their new state officially accepted their marriage as valid.  One thing left uncertain in Thursday’s ruling was the impact of the ruling on legally married gays who now live in states that refuse to recognize any such marriage.   A part of DOMA that deals with this point — Section 2, giving states permission not to recognize such a marriage performed in another state — was not at issue before the First Circuit.

Thursday’s ruling by the First Circuit marked the first time that a challenge to DOMA had succeeded in a federal appeals court, but the same issue is now pending in the Ninth Circuit Court after two federal judges in California had found Section 3 to be invalid.   The Ninth Circuit Court is also pondering now a request that it reconsider, en banc, a three-judge Circuit panel’s ruling in February striking down California’s voter-approved “Proposition 8,” banning same-sex marriage in that state.

DOMA’s Section 3, limiting any federal benefit based on marriage to a man and a woman, applies to more than 1,000 federal laws and is understood to affect more than 100,000 married gay couples around the country.  While Congress did not seek in DOMA to directly outlaw same-sex marriage, it did deny access for such married couples to such things as Social Security survivor benefits, health insurance for federal workers’ spouses, and other medical benefits, and it barred such couples from filing joint federal tax returns.

The First Circuit also noted that the ban “has potentially serious adverse consequences for states that choose to legalize same-sex marriage.” In fact, the state of Massachusetts joined in this challenge by arguing that Section 3 would revoke federal funding for the state’s Medicaid program for the poor, and for state veterans’ cemeteries.

Last year, the Obama Administration decided that it would no longer defend DOMA’s constitutionality in federal court, and has argued since then that Section 3 is unconstitutional because it cannot survive a more rigorous constitutional standard that, the government said, should apply to laws that treat gays and lesbians less favorably.  The standard the Administration has been pressing is “heightened scrutiny,” which puts a heavier burden on a defender of a law than the easy-to-satisfy “rational basis” standard.   After the Administration changed its position, the Republican leadership of the House of Representatives began defending DOMA under the “rational basis” standard.

The First Circuit, however, refused in the new decision to adopt a “heightened scrutiny” standard.  Instead, it said it interpreted Supreme Court precedents to require “a closer than usual review” when a law would have a differing impact among married couples and would implicate “the importance of state interests in regulating marriage.”

It noted that the Republican leaders’ group had argued that any challenge to DOMA based upon constitutional equal protection principles was barred by a 1972 Supreme Court decision, in Baker v. Nelson, a summary decision that rejected an equality challenge to a state ban on gay marriage.   The Baker decision upheld a state supreme court ruling upholding the man-and-woman-only marriage law in Minnesota, finding that the challenge did not raise “a substantial federal question.”

The First Circuit said that lower courts like it remain bound by the Baker ruling.  While it said that precedent did not control this new case, “it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.”   It went on to say that neither the challengers’ claim that DOMA fails even a “rational basis” test nor the federal government’s argument that it fails “heightened scrutiny” adequately describes what controlling Supreme Court precedents dictate in a case like this one under equal protection analysis.

The DOMA ban, it concluded, would survive a test under “rational basis” review.  Congress, it said, believed at the time it passed DOMA that it would reduce tax revenues and raise Social Security payments — arguments that, it said, would satisfy such a minimal standard of review.   The panel added that applying “heightened scrutiny,” as the Administration asked, was not an option open to a federal appeals court in this context, because a past Circuit precedent in 2008 refused to adopt a heightened standard in a gay rights case, and because of the Supreme Court’s precedent in the Baker case.

The Supreme Court itself did not adopt a higher standard of review in a 1996 gay rights case, Romer v. Evans, the Circuit Court remarked, and it could have done so if it wished.   Moreover, the opinion added, imposing a higher constitutional test “could overturn marriage laws in a huge majority of individual states,” thus “underscoring the implications.”

Still, the panel said, that is not the end of the constitutional inquiry as to DOMA’s Section 3.   It said other Supreme Court rulings in equal protection cases have brought “intensified scrutiny” of laws treating minorities less favorably, and have allowed fewer justifications for such laws.  The Supreme Court, it added, requires the federal government to show with “special clarity” its justification of laws applied in “areas where state regulation has traditionally governed.”   In such cases, it noted, the Justices have required a closer “fit” between federal interests and federal laws moving into such state zones of interest.

The Supreme Court’s precedents in this field, the Circuit Court said, do not use “rational basis” review “in its minimalist form,” but rather examined more closely in each case the differing treatment, the burden imposed, and the failings in the attempted justifications.   This indicates, the panel said, that a federal appeals court has a duty to be “sensitive to the circumstances of the case” without depending upon “abstract categorizations.”

Because gays and lesbians “have long been the subject of discrimination,” the opinion concluded, there must be “a more careful assessment of the justifications” than would be applied in “the light scrutiny offered by conventional rational basis review.”   The burdens that DOMA’s Section 3 imposed on married same-sex couples, it found, “are comparable” to the burdens that the Court found in its recent precedents dealing with discrimination against minorities.   Thus, it predicted, the Supreme Court itself would not give “extreme deference” to a law like DOMA if now presented with it.

The Circuit Court found another rationale for giving a closer look at DOMA’s burdens on same-sex spouses: federalism principles, which show respect to states’ powers in traditional areas of state control, such as marriage and domestic relations.   Congress, it noted, “has never purported to lay down a general code defining marriage or purporting to bind the states to such a regime….No precedent exists for DOMA’s sweeping general ‘federal’ definition of marriage for all federal statutes and programs.”

While some federalism arguments do not work against DOMA, the Circuit Court found, the argument that did work was that Section 3 puts a burden on states like Massachusetts in the way they choose to regulate “the rules and incidents of marriage.”   DOMA would put added administrative responsibilities on the state, and would cut federal funding for some state programs, it commented.  “Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed,” it said.

The Circuit Court then went on to examine, and to reject, the justifications put forward for Section 3, such as “preserving scarce government resources,” “support child-rearing in the context of stable marriage,”  “moral disapproval of homosexuality,” and a desire to simply put the issue of gay marriage on hold until further study could develop.   “The rationales offered do not provide adequate support for Section 3 of DOMA,” it declared.

The Circuit Court stressed, near the end of its opinion, that it was not relying on the challenge by gay rights advocates that DOMA had a “hidden but dominant purpose” of “hostility to homosexuality.”   It conceded that some lawmakers had that in mind, but others may have had different reasons.

In closing, the panel said that it expected an appeal to be pursued to the Supreme Court, so it put Thursday’s decision on hold “pending further order of this court.”

The opinion was written by Circuit Judge Michael Boudin, and was joined by Chief Circuit Judge Sandra L. Lynch and Circuit Judge Juan R. Torruella.

 

 

 

 

Posted in Cases in the Pipeline, Everything Else, Featured

Recommended Citation: Lyle Denniston, DOMA ban on gay marriage falls (FINAL UPDATE), SCOTUSblog (May. 31, 2012, 11:33 AM), http://www.scotusblog.com/2012/05/doma-ban-on-gay-marriage-falls/