The First Circuit Court of Appeals in Homostan, Massachusetts struck down the Defense of Marriage Act yesterday, the first federal court to do so, though other challenges are being considered by the Ninth Circuit in California.
The decision led to a flurry of articles along the lines of "Gay marriage ban declared unconstitutional" and so forth, in which PoliticOlogy was more than complicit, mostly because we here knew what an awful jobs report was on the way and wanted to bask in some good news first. So it's worth stopping now and asking just what the First Circuit decided about DOMA, the scope of its decision, and law's likely fate once it reaches the Supreme Court, which it definitely will.
(I'm basing this article mostly off the recap by the incomparable Lyle Denniston at SCOTUSBlog. Go read his if you've got time and some baseline legal knowledge; read mine if you like your legal commentary more Aerosmith than Rolling Stones.)
First off, the First Circuit said nothing about the constitutional right to same-sex marriage. In fact, it explicitly took itself out of that game by citing Baker v Nelson, a 1972 precedent that a Minnesota law defining marriage as between a man and a woman did not raise "a substantial federal question." In other words, however a state defines marriage—heterosexual only, or inclusive of same-sex couples—is not the federal government's business. In the case of the challenge to DOMA, the First Circuit noted that Baker "does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage." (Republicans had hoped this same precedent would throw the whole challenge to DOMA out, but the First Circuit didn't buy this argument.) In short, those hoping that this was some sort of landmark decision affirming the constitutionality of gay marriage are out of luck.
The First Circuit also disagreed with the Obama administration's argument that laws adversely affecting same-sex couples be subject to a "heightened scrutiny" standard, the same one currently applied to laws potentially discriminating on gender or racial lines, which require that the government prove a compelling interest for a law that disadvantages a particular group; the Republican House has been arguing for the less-stringent "rational basis" standard. Overall, the First Circuit did not seem sympathetic to arguments that DOMA had to pass heightened scrutiny solely due its discriminatory nature, and argued that the law appeared to pass the less-stringent rational basis standard, in that Congress has the right to pass laws regarding the benefits it extended. So far so good for DOMA.
Where the First Circuit turned against the law was in its encroachment upon state business. Quoting Denniston directly:
The Supreme Court, [the decision] added, requires the federal government to show with "special clarity" its justification of laws applied in "areas where state regulation has traditionally governed." In such cases, it noted, the Justices have required a closer "fit" between federal interests and federal laws moving into such state zones of interest.
Think of this as "heightened scrutiny" for the entrance of the federal government upon state business; Congress can do it, but it needs to show a compelling reason for doing so. The Supreme Court has demanded a higher scrutiny over cases in which Congress attempted to impose a discriminatory law upon states; a law that would be judged under the less-stringent rational basis if its purview is limited to federal business must pass a more stringent test if it is impacting state business. That's DOMA to a t, and the First Circuit argued that given SCOTUS' recent trends in this direction, the Court would place DOMA under this harsher scrutiny:
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.
[...] Where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process.
DOMA failed this higher scrutiny, the First Circuit argued, by needlessly disadvantaging same-sex couples in areas of joint tax returns, access to spousal health benefits, and all the other tangible benefits of marriage that are granted to heterosexual couples. The same logic that allowed Congress to pass under the rational basis earlier—its interest as a government in overseeing tax policy, etc.—failed to justify its attempt to impose such measures on the states. If DOMA were to solely impact, say, federal government employees, Congress might get away with the discriminatory nature of the law, but it cannot force such discriminatory policies onto states that choose not to echo them.
The First Circuit found that Congress did just that by unnecessarily intruding, in a punitive way, on Massachusetts' business, specifically by interfering with the states' ability to execute its programs such as Medicare and adoption policies:
[T]he 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; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. 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.
DOMA's justifications for this intrusion were both the need to conserve government resources (as opposed to just handing them out to any Tom and Dick who want to get married, I suppose) and to maintain traditional morality in marriage and child rearing. The First Circuit rejected these rationales under their heightened scrutiny: if those are Congress' reasons for negatively intruding on state business, they're not good enough. Here is where the First Circuit took its most direct aim at Congress' reasons for passing the law, namely to uphold traditional marriage, and found both the reason and its justification wanting. If you want a takeaway quote from the ruling, this is your best candidate:
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
The First Circuit also took DOMA to task under essentially the same logic by which the judges refused to rule on the constitutionality of same-sex marriage. If a state's definition of marriage does not raise a substantial federal question, then Congress has no business making a substantial federal question out of it. In other words, if federal law can't intrude on a state to force marriage equality, as Baker determined, then neither can Congress pass laws based on an explicitly limiting definition of marriage. If there's a landmark-ness about the decision, it's probably right here: Congress has no right to make decisions affecting states based on exclusionary definitions of marriage. If the Supreme Court upholds that part of the ruling, it could have wide ramifications for the expansion of gay rights.
That's if the Supreme Court agrees. Will it? Nobody knows, as the Court has been inconsistent on the issue of Federalism in general, with at least two justices, Alito and—oh, come on, you know who—deciding cases upon Federalist principles when they agree with an ideological position and deciding against states' rights when they don't. In Scalia's dissent to Romer v Evans, which would have prohibited homosexuals from being a protected class under Colorado law, Scalia described the gay rights movement as a "politically powerful minority" on a mission "to revise those mores through use of the laws," and he authored the dissent to Lawrence v Texas, which overturned sodomy laws and effectively de-criminalized homosexuality. In both of those cases he sided with a states' rights argument for prohibiting homosexuality—in Romer, he explicitly argued that it was Coloradoans' right to legislate homosexuality through the ballot box—so it will be interesting to see if he suddenly finds an anti-Federalist argument for the definition of marriage hiding under his couch.
But Scott Lemieux over at Lawyers, Guns, and Money floats the theory that Clarence Thomas might join the liberal justices in overturning DOMA (!). Check it out:
Thomas is the closest there is on the Supreme Court to being an exception to Lemieux’s dictum that Nobody Cares About Federalism. Gonzales v. Raich showed that Thomas, unlike Scalia and Kennedy, was willing to prioritize federalism over the policy preferences of Republican officials...So, the question is whether for Thomas same-sex marriage is a core issue or a more peripheral one...Scalia will obviously vote to reverse because he 1) cares a lot less about federalism than Thomas, and 2) cares a great deal about preserving discrimination against gays and lesbians. Thomas, however, distanced himself from Scalia’s culture warfare in his own Lawrence dissent, and it’s not clear how important same-sex marriage is to him.
As Lemieux adds, this is more of an academic point than anything, as it's unlikely that Thomas will be the deciding vote on a 5-4 decision. If he goes, Kennedy or even Roberts will probably have crossed the line first. But interesting to think about nonetheless.
In general, the Supreme Court has been moving, through Romer and Lawrence, away from its 1986 decision upholding the criminalization of homosexualty, though the First Circuit notes that it has yet to treat sexuality as the same protected class as gender and race. The First Circuit found that DOMA fails a constitutional test even without this added protection on 10th Amendment grounds. But this SCOTUS is both conservative and fairly activist, despite Roberts' Congressional confirmation testimony to about just bein' a ump. It's unlikely they will choose this moment to fully recognize homosexuality as a protected class; but there is an outside chance they will decide to rule on gay marriage more broadly. If that's the case, the ruling won't be pretty for same-sex marriage.
Denniston thinks DOMA could go before the Supreme Court as early as October 1st, which means we'd have a decision in nine months or so.
[Also: Forbes has a good economic rundown of the bill, which very much is a tax case as well as a states' rights and civil rights one.]
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