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Golden Oldie: First Circuit strikes down DOMA as unconstitutional


We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies will run in the place of regular posts. Today’s post is the announcement of the First Circuit’s decision in Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services, marking the first time an appeals court struck down Section 3 of the Defense of Marriage Act. The circuit court’s full decision is below. The comment thread featured 107 comments on the announcement and the thread is here.

Regularly scheduled programming will resume on January 2nd – Scottie Thomaston

By Scottie Thomaston

Updates to follow at bottom, scroll down…

Gill v. OPM was recently heard at the First Circuit Court of Appeals, and today the decision came down that the three-judge panel has struck down the law as unconstitutional.

The unanimous decision striking down DOMA in Gill v. OPM is here. It is the first time DOMA was considered unconstitutional by a circuit court.

The Huffington Post has more:

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The decision will be stayed given the probability that the losing party will ask for a grant of certiorari at the Supreme Court.

From the decision:

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

It appears that they found they couldn’t apply heightened scrutiny to gays and lesbians, ruling that it wasn’t open to them (Cook v. Gates is binding precedent), and the Supreme Court “conspicuously failed to [apply heightened scrutiny] in Romer–a case that could readily have been disposed by such a demarche.”

Cook v. Gates is a binding First Circuit decision that ultimately decided not to rule that gays and lesbians are a “suspect classification” instead leaving it up to the Supreme Court to decide. The judges said that Cook ties their hands in deciding the issue of heightened scrutiny and whether gays and lesbians are a suspect classification.

The court also held that another case, Baker v. Nelson which summarily dismissed an equal protection claim that gay people have the right to marry under the Constitution applies in this case, but only to the extent that it limits the arguments to ones that don’t “presume a constitutional right to same-sex marriage.”

The court said that the line of cases from Moreno to Romer (holding that animus is not a rational basis for a law) applies to this case:

All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.

Those cases used a stronger form of rational basis to strike down those laws. Lawrence did as well, and it’s cited in the opinion.

And Chris Geidner notes that:

In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey and Department of Justice Civil Division Chief Stuart Delery.

Delery is gay and argued successfully against the odious Defense of Marriage Act.

Attorney Adam Bonin, writing at Daily Kos, notes that the judges say that DOMA does have a rational basis, but that under the Romer/Moreno stronger rational basis review, it is unconstitutional.

UPDATE: The panel was comprised of two Republican-appointed judges and one Democrat-appointed judge, and was unanimous, so two more Republican-appointed judges have now joined in opposition to DOMA. The opinion was written by Judge Michael Boudin, a judge appointed by President George H.W. Bush.

UPDATE 2: It’s important to note that ultimately it was the Federal Government’s position that prevailed: the court rejected Massachusetts’ Tenth Amendment claims but still invalidated DOMA.

UPDATE 3: On a press call with GLAD and the Gill plaintiffs, and they note that the First Circuit is a six-member court, and three of the judges just ruled unanimously to overturn DOMA. This would suggest that en banc review is unlikely.

UPDATE 4: GLAD suggests the Supreme Court would likely grant certiorari. Chris Geidner asks them to explain why the Supreme Court should hear the case. Bounato says “same-sex couples are singled out for sweeping disrespect by the federal government.” “We think this is a good case for Supreme Court review… it’s like Romer (v. Evans.)” She says “this law is a real outlier.”

UPDATE 5: Asked about the time frame for possible Supreme Court review, she says, “They have 90 days to file cert petition.” August cert filing, October conference would be likely.

UPDATE 6: The GLAD conference call is over, and they’ve issued a press release:

Today, the U.S. Court of Appeals for the First Circuit ruled unanimously that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. The ruling has been stayed pending a likely appeal to the U.S. Supreme Court.

“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” the court stated in its opinion.

“This is a strong opinion that affirms that DOMA is an outlier for two reasons. First, because it targets a historically disadvantaged and unpopular group. Second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,” said Mary Bonauto, GLAD’s Civil Rights Project Director, who argued the case. “Congress does not get to put its ‘thumb on the scales,’ as the court put it, simply because it does not agree with Massachusetts’ decision to allow loving and committed same-sex couples to marry.”

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in today’s decision.

The next step most likely in the case is for the federal defendants and BLAG to decide whether they will seek review in the Supreme Court. That request should come within the next 90 days.

UPDATE 7: Lambda Legal is up with comments on the decision:

We are thrilled that another court—this time, the Court of Appeals for the First Circuit—has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.

The so-called Defense of Marriage Act is being challenged in multiple cases, and it won’t be long before that bad law is gone for good.

We congratulate our colleagues at Gay and Lesbian Advocates and Defenders (GLAD) and the State of Massachusetts for achieving this wonderful victory.

UPDATE 8: The Wall Street Journal‘s Law Blog has several excerpts from the opinion, emphasizing the judges’ decision to invalidate DOMA based on precedent related to a stronger rational basis review, instead of the Tenth Amendment federalism claims raised by Massachusetts:

In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but 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.

It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.

UPDATE 9: Washington Blade‘s Chris Johnson says House Speaker John Boehner (tasked with defending DOMA) will have a statement soon on the next steps BLAG will take:

UPDATE 10: Geidner at Metro Weekly notes (in a post linked above) that the White House is weighing in on the decision:

White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.

UPDATE 11: Pam Spaulding has a post featuring a lot of reactions from Congresspeople, and from LGBT organizations.

UPDATE 12: Alliance Defense Fund, the group who is defending Proposition 8 in court, has issued a statement on the Gill DOMA ruling, comparing same-sex marriage to polygamy.

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