Court Agrees: Fed Gov Must Recognize Same-Sex Marriages

A unanimous three-judge panel of the Federal Appeals Court for the First District today ruled that the section of the federal Defense of Marriage Act that prevents the federal government from recognizing legally married same-sex couples, and denies couples access to things like Social Security survivor benefits, is unconstitutional. Lambda Legal called the ruling “another nail in DOMA’s coffin.”

The court upheld a similar ruling at the district court level; the appeals court also stayed its ruling pending action by the Supreme Court.

According to Think Progress, two of the judges on the panel were Juan Torruella and Michael Boudin, both of whom are Republican appointees: “Judge Boudin, who authored the opinion, is one of the most highly regarded judges in the country; he frequently sends his former law clerks to clerk for Supreme Court justices.”

The appeals court considered the rationales offered for DOMA’s section 3 as well as the standards that should apply in the case.

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.  

The court also said that in the past, moral disapproval would have provided a stronger basis for such a law, but that Supreme Court rulings in the recent decades have limited appeals to moral disapproval, especially in cases involving legal discrimination against a particular disadvantaged group.

For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 

The Court also noted that the specific section of DOMA before it, the one that prevents legally married same-sex couples from getting the same federal benefits available to other married couples, flies in the face of one stated rationale for the overall law, which is to protect state sovereignty. The court said that “no precedent exists” for DOMA’s sweeping general federal definition of marriage for all federal statutes and programs. (The part of DOMA that protects states from having to recognize same-sex couples married in another state was not before the court.)

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. 

The Obama administration has stopped defending DOMA in Court, arguing that the law is unconstitutional, leading the House of Representatives’ Bipartisan Legal Advisory Group to step in to defend the law. Gay & Lesbian Advocates & Defenders, the organization that brought the case, expects the House group to appeal to the Supreme Court. Says GLAD (not to be confused with GLAAD), “We are prepared to fight until our victory is secured.”

Meanwhile, anti-marriage equality forces continue their effort to reverse pro-equality gains at the state level. In Maryland this week, where polls have shown a significant pro-equality shift since expressions of support for marriage equality by President Obama and the NAACP, marriage opponents turned in more than twice the number of signatures required to put the state’s marriage equality law before voters. According to one blog, “Marylanders for Marriage Equality has revealed, however, that the race-baiting organization ‘National Organization for Marriage’ has financed most of this operation.”

In the state of Washington, forces gathering petitions in the to overturn the state’s new marriage equality law say they have more than enough signatures to qualify for the ballot. And if that does happen, Washington Mormons for Marriage Equality say they will join the fight. 

Peter Montgomery, an associate editor for Religion Dispatches, is a Senior Fellow at People For the American Way Foundation where he was on staff for 15 years. Before that he was associate director of grassroots lobbying for Common Cause and wrote for Common Cause Magazine, an award-winning journal featuring investigative reporting about the federal government.