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Last Week DOMA, This Week Prop 8: Thoughts on What's Next

Last week, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes under federal law as between one man and one woman, violates the U.S. Constitution. And yesterday, the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown, which held that California's constitutional amendment banning same-sex marriage violates the federal Constitution's Equal Protection Clause. The First Circuit's decision last week paired with the Ninth Circuit's decision not to further review Perry raises the possibility that the Supreme Court may weigh in on questions of marriage equality under the Constitution sooner rather than later.

The First Circuit's decision is the first time a federal court of appeals has held that DOMA is unconstitutional. (The National Women's Law Center joined a friend-of-the-court brief arguing that DOMA violated the Equal Protection Clause.) The First Circuit's ruling was issued in two consolidated cases. In Gill v. Massachusetts, same-sex couples married under state law argued that Section 3 of DOMA violated the Equal Protection Clause by preventing same-sex spouses of federal employees from receiving the same spousal benefits as opposite-sex spouses; and in Massachusetts v. Department of Health and Human Services, the commonwealth of Massachusetts argued that this section of DOMA was invalid under the Tenth Amendment and the Spending Clause because federal funding for specific programs was premised on denying benefits to same-sex married couples. In 2010, a Massachusetts district court had ruled that Section 3 of DOMA was unconstitutional in both cases.

(As you may be aware, the story got a little more complicated at this point. In the district court litigation, the Department of Justice had defended DOMA's constitutionality. And in the initial briefs in the appeal of the consolidated cases, DOJ did as well. But after Attorney General Holder issued his February 2011 memo, DOJ filed a revised brief arguing that DOMA should be subject to "heightened" constitutional scrutiny of the sort that applies to discrimination on the basis of sex — meaning that DOMA would be unconstitutional unless it were shown to be substantially related to an important state interest. Under that standard, DOJ argued, DOMA violated the Equal Protection Clause (but not the Tenth Amendment or the Spending Clause). After the DOJ declined to defend DOMA, a group of Republican Members of Congress retained counsel and intervened in the case to defend the legislation. But I digress.)

In an opinion written by Bush I appointee Michael Boudin, the unanimous Court of Appeals panel affirmed the district court's ruling that Section 3 of DOMA violates the Equal Protection Clause (but not the Tenth Amendment or the Spending Clause). The panel declined to apply heightened scrutiny under the Equal Protection Clause, as urged by the DOJ and others, however, stating that it was precluded by both circuit and Supreme Court precedent from doing so. However, the panel distinguished between the rational basis review "applied in routine matters of commercial, tax, and like legislation," under which almost any justification for any given law is accepted, and rationality review that entails "intensified scrutiny of purported justifications where minorities are subject to discrepant treatment." The court concluded that the latter version of rationality review was appropriate here because DOMA targets LGBT individuals.

Applying this "intensified" rational basis review, the First Circuit ruled that same-sex spouses of federal employees were burdened by DOMA, because those individuals lost out on tax, Social Security, and other benefits as a result of the law. The court examined the justifications for DOMA offered by the law's defenders, including (1) reserving scarce government resources, (2) supporting child-rearing by stable married heterosexual couples, and (3) moral disapproval of homosexuality. With regard to the first reason, the court concluded that Congress could not validly decide to try to save money by denying federal benefits to a historically disadvantaged group like LGBT individuals. With regard to the second, the court found that there was absolutely no connection between denying benefits to same-sex married couples and strengthening the marriages of opposite-sex couples, who may or may not have children. And the court found that, under the Supreme Court's decision in Lawrence v. Texas, moral disapproval alone cannot justify discriminatory legislation. Accordingly, the court ruled that the relevant section of DOMA violates the Equal Protection Clause and is unconstitutional.

By applying a demanding version of rational basis review to strike down DOMA, Judge Boudin's decision in some ways echoes Reed v. Reed, the 1971 Supreme Court decision that was the first to strike down a law as unconstitutionally discriminating on the basis of gender. In Reed v. Reed, the court used the language of rational basis review while more closely scrutinizing the relationship between the law and the purposes it allegedly served than is customary under traditional rational basis review. Five years later, the Supreme Court clarified the law, adopting a heightened scrutiny analysis for gender discrimination, but in some ways, the decision in Reed captured an essential truth: discrimination on the basis of sex is inherently irrational. The Gill decision suggests that so too is discrimination on the basis of sexual orientation.

We applaud this result, as well as the Ninth Circuit's choice to let the Perry decision stand — both decisions which afford the marriages of same-sex individuals the recognition and dignity they unquestionably deserve. Judge Boudin's ruling and the Perry decision, further, indicate that the legal grounds for striking down same-sex marriage restrictions are becoming increasingly accepted by courts. But as Gill pointedly notes in several places, the real question is whether the highest court in the land will agree with the First and Ninth Circuits. Stay tuned.

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