1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional

I agree completely.

Will this be the end of marriage discrimination on the basis of sexual preference, or will it go to the Supreme Court?

I think any conservatives that pursue this are going to be damaged.

It will head to the Supremes, and the conservatives don’t care what kind of damage it might cause. They’ve hitched their wagon to this issue, and they’re going to ride it into the End Times. To them it is a Holy Cause and they will not be proven wrong by a mere court.


one word: SCOTUS.

onsSince at least one other circuit (the Seventh, in Citizens for Equal Protection v Bruner) has said that DOMA-type restrictions are constitutional, I’d say that SCOTUS needs to step in.

Hi-ho, Hi-ho it’s off to SCOTUS we go.

This isn’t necessarily a bad thing though. Once the highest court weighs in, it should put an end to this silliness for a while.

In fact they stayed the ruling until the SCOTUS decides. I suppose that they could decide no to hear it at all which means that it’s valid only in the 1st Circuit but I doubt that.

We have this plus the CA Prop 8 ruling which will make its way there. 2013 will be a landmark year for gay rights. I hope in a good way.

What happens if SCOTUS doesn’t take it on?

The significance is that I believe the 1st was the only district left with a standing precedent that homosexuality was to be held to the rational basis (without bite)

I think this bodes well for sexual orientation being held to a higher standard.

Two different district courts have ruled differently - SCOTUS has to take it on.

I see very little chance of that happening. A Federal court basically said that state laws defining marriage this way are unconstitutional, but fell short of actually doing it on the minor technicality that it lacks the power to do so. I doubt the Supremes would leave a pretty clear state/federal split in place.

Under the more compelling Rules of the SC for granting a Petition for Certiorari, is when 2 or more Sister Circuits conflict. Good chance it will be taken on.

The lower Court ruling stands.

Also, a denial of Certiorari, as the SC has stated itself, is NOT a decision on the merits.

But in this case, it would only stand for those in its circuit, right?

Right, but the law at times does not provide, say in a similar civil action, that a lower civil court in a state covered by it accept it’s ruling, that’s rare in law though. The Supremacy Clause only pertains to the US SC.

I honestly wonder what will happen at the SupCt. As I’ve said elsewhere today, Kennedy has been quite gay-friendly in the past (wrote Romer v. Evans, wrote Lawrence v. Texas) and Thomas (unlike Scalia, who rarely lets his jurisprudential philosophies get in the way of enforcing his idealogical preferences), while awful, is much more consistent jurisprudentially – he might agree with the federalism argument presented in this case (which IMO is an absolute winner, if you care about federalism at all).

Note that this only applies to federal discrimination against gay marrieds. It doesn’t change the right of states to refuse to recognize SSM. That’s in fact the central point.


If they hold sexual preference to any standard above rational, including rational “with bite” most of those state laws will fall.

Can you expand on that a bit?

As I see it, the federalism issue would arise if DOMA purported to force states not to recognize SSM. Since all it does (in Sec 3, anyway) is forbid federal benefits, why isn’t it simply an exercise of federal discretion in conferring those benefits?

In other words, states, do as you please, but we feds think marriage should be between a man and a woman, so that’s how we’re going to hand out the goodies.

How does that offend federalism?

The federalism argument is addressed in the decision. While Judge Boudin isn’t convinced by the argument, the federalism argument is that, by establishing a federal definition of marriage, whereas, in the past, the US government has recognized defining marriage as a power of the states, DOMA is a federal intrusion into state power. Again, Boudin isn’t convinced that the argument is valid, but it is out there.

Here’s the actual decision if anyone wants to read it:


What Captain Amazing said. Massachusetts, et al., have the right to decide what marriage means within the confines of their state. There’s little more central to state power than family law. And yet the fed has usurped Massachusetts’ ability to grant marriage to same-sex couples; all it can offer is a deficient union that doesn’t confer social security benefits, or immigration status, or what have you. The fed doesn’t have the right to define marriage – that is left to the states – but it’s what DOMA purports to do.