Mary Bonauto

A unanimous three-judge panel of the First Circuit U.S. Court of Appeals ruled today (Thursday, May 31) that the core part of the Defense of Marriage Act, barring federal recognition of marriages of same-sex couples, is unconstitutional. An appeal of that decision is expected to be filed fairly quickly with the U.S. Supreme Court and is likely be before the high court this fall.

The First Circuit panel said that, under simple rational review of the law, the same-sex couples seeking to overturn DOMA “cannot prevail.” But, importantly, the panel also said that, because DOMA implicates both equal protection and federalism, the law requires “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.”

In its 33-page decision, the judges affirmed the U.S. District Court ruling that DOMA violates the equal protection rights guaranteed by the U.S. Constitution. It did not agree that DOMA also violates the spending clause or Tenth Amendment rights of states. While DOMA does “intrude” into a realm of law “primarily confided to state regulations,” said the panel, “Nevertheless, Congress surely has an interest in who counts as married.”

“That Congress has traditionally looked to state law to determine the answer [to what defines marriage] does not mean that the Tenth Amendment or Spending Clause require it to do so.”

“However,” said the panel, “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….These consequences do not violate the Tenth Amendment or Spending Clause, but 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 then proceeded to reject—using an “intensified scrutiny”—each of the arguments put forth by the Bipartisan Legal Advisory Group (BLAG), a Republican-dominated Congressional committee that authorized an outside attorney to defend DOMA in federal lawsuits around the country. Those arguments included such things as “preserving scarce government resources,” “support child rearing,” and to preserve the traditional definition of marriage.

“For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute,” said the panel. “… But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

“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,” said the panel. “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.”

“We think that this is a fantastic decision that is crisp and solid and well-reasoned,” said GLAD’s Bonauto. “And it’s really rooted in the last 50 years of equal protection jurisprudence and federalism jurisprudence.”

U.S. Rep. Barney Frank (D-Mass.) said the ruling “vindicates the decision by the Obama administration not to defend the “Defense of Marriage Act,” which denies rights to millions of Americans. It is also a tribute to the thoughtful, principled legal strategy by Mary Bonauto and her associates at Gay & Lesbian Advocates & Defenders.”

“I am confident that the U.S. Supreme Court will add its support for this decision which is so firmly grounded in long-standing American constitutional principles,” said Frank.

The universal reaction among LGBT civil rights groups was similar.

“Whether it is California’s Proposition 8 or the so-called Defense of Marriage Act, court after court has affirmed that marriage discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights which has been pressing the challenge to California’s same-sex marriage ban. That challenge has succeeded at the U.S. district court and Ninth Circuit panel levels. It is now awaiting word on whether the full Ninth Circuit will hear an appeal of those lower court decisions.

In coming to its decision, the panel decided that an earlier First Circuit decision on a case challenging “Don’t Ask, Don’t Tell”  “has already declined” to grant “suspect classification” to laws based on “sexual preference.” And the panel said it was neither empowered nor willing to “create such a new suspect classification for same-sex relationships.”

It also ruled that, while a 1972 U.S. Supreme Court dismissal of Baker v. Nelson is “precedent binding on us,” subsequent U.S. Supreme Court decisions, in such cases as Romer v. Evans and Lawrence v. Texas, make its usefulness in the current cases limited. In Baker, a gay couple in Minnesota appealed a ruling of their state’s supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple’s appeal. BLAG attorney Paul Clement had argued the First Circuit was bound to do the same with the DOMA challenge.

The panel stayed its decision, meaning the federal government is not obliged to immediately begin recognizing same-sex marriages. But Mary Bonauto, lead attorney for same-sex couples on the case, said she expects the decision will be appealed in short order.

The decision was written by Judge Michael Boudin and joined by Chief Judge Sandra Lynch and Judge Juan Torruella. The panel heard oral arguments in the two cases —Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services—on April 4.

The “case” before the panel was a consolidation of three cases, brought by Gay & Lesbian Advocates & Defenders (GLAD) and by the Commonwealth of Massachusetts. They are generally referred to as Gill v. Office of Personnel Management.

In Gill, GLAD argued that DOMA’s ban on federal recognition of same-sex marriages violates the equal protection of same-sex couples. In Massachusetts v. HHS, the state argued that it interfered with the state’s authority to regulate marriage. In Hara v. OPM, GLAD argued a very narrow case involving the benefits due to one plaintiff, Dean Hara, the widow of the late U.S. Rep. Gerry Studds.

 U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution’s guarantee of equal protection, its Spending Clause, and the Tenth Amendment right of states to sovereignty.

Section 3 of the federal law, passed in 1996, states that, for federal government purposes, “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.” None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.