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First Circuit Upholds Lower Court Decision Invalidating DOMA in Gill and Massachusetts

In a unanimous 3-0 decision, the First Circuit Court of Appeals upholds Judge Tauro’s ruling, holding that DOMA is unconstitutional.  The panel determines that it is bound by the precedent of Cook v. Gates and thus cannot apply heightened scrutiny to gays and lesbians.  Nonetheless, the First Circuit rules that it cannot rely on simple rational basis scrutiny, which most laws can easily pass.

The appeals court points instead to several cases, among them Romer v. Evans and Department of Agriculture v. Moreno and City of Cleburne v. Cleburne Living Center, in which a more searching form of rational basis was applied by the Supreme Court.  These cases, the panel notes, “stress[] the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination.”  Because of the history of discrimination against these groups, the Supreme Court’s rational basis determination in the three cases was more searching than that which would be applied, for example, to economic legislation.

In addition, the First Circuit notes that the issues of federalism implicated in the case provide additional justification for the so-called ‘rational basis with teeth.’  The panel rejects the argument made by the Commonwealth of Massachusetts that DOMA should fall under the Tenth Amendment or the Spending Clause alone, but notes that DOMA “intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation”—that is, marriage and family law.  Accordingly, this federalism infringement merits a closer look at the equal protection claims the plaintiffs present than ordinary rational basis review would.

Significantly, the First Circuit holds that DOMA would stand if considered under conventional rational basis scrutiny, but finds that under the more searching form of rational basis scrutiny, it must fall, since it in no way furthers BLAG’s purported reasoning that DOMA strengthens heterosexual marriages.  In its conclusion, the First Circuit writes:

 “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.”

Due to a vacancy on the six-person First Circuit court, the success of an en banc petition appears extremely unlikely.  (Any such petition could be denied a majority in the Court if the original panel voted to uphold its decision.)  Thus, the only logical next step in the appeals process for the case is the Supreme Court.

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