The judicial campaign against DOMA

Yesterday, a panel of three judges on the U.S. Court of Appeals for the 1st Circuit (the federal appeals court that covers Massachusetts and some of the other Northeastern states as well as Puerto Rico) ruled the federal Defense of Marriage Act is unconstitutional. DOMA was passed by Congress in 1996 and has two sections. The first part allows states to determine whether they will recognize a same-sex marriage contracted in another state. The second part says that wherever federal law uses terms like “marriage” or “spouse” those terms refer to the union of a husband and wife. That means federal law does not recognize things like same-sex marriage or polygamy.

The second part has been targeted in a recent series of lawsuits. It appears that major gay rights advocacy groups have divided up the U.S. and brought lawsuits in various states (Massachusetts, Connecticut, New York, California) where the federal courts seem likely to accept their claims. A couple of courts have done so, two of these decisions are on appeal and today’s 1st Circuit case is the one that has gone furthest. The decision notes the U.S. Supreme Court will likely be the final word on the constitutionality of DOMA. 

The trial court decisions ruling against DOMA shared some common themes: Congress was acting out of hatred toward gay people in passing the law, there is no rational reason to define marriage as the union of a husband and a wife, and (strangely) Congress lacks authority to define marriage in federal law if the states use another definition (though that has happened in a variety of federal laws and it would turn our system of federalism on its head to mandate federal law use state definitions).

Interestingly, the 1st Circuit rejected all of these arguments.

In rejecting these implausible claims, the decision laid bare what is really at stake. The court said DOMA is unconstitutional because it denies government benefits to minorities and U.S. Supreme Court decisions since 1973 (applying a constitutional provision ratified in 1868) have implied that courts get to second-guess Congress when this happens. So, why is DOMA unconstitutional? Because we said so. Got it?

David French makes a great comment about this case:

Think for a moment of the awesome power of the sexual revolution over law and logic. Is there a single legal doctrine that can stand against the quest for personal sexual fulfillment? Nondiscrimination regimes fall before sex-selective abortion, religious liberty falls before the “right” to free contraception, and free speech is increasingly subordinate to the “right” of a person to feel good about their sexual choices. Thanks to no-fault divorce, a marriage is less binding than a contract (most contracts carry with them stiff legal penalties for breach — not so in divorce court), and now in the eyes of some courts, the entire rationale for the traditional definition of marriage is reduced to nothing more than malice against gays.

When I was in law school, my “crit” contracts professor told me that the lawyer of the future would have to first argue what’s right (the “social justice” of the case), then describe how the law can be read to reach that result. I can remember rolling my eyes and thinking that such an approach would likely get me sanctioned. I was naive. He was right.