# 1st Circuit Court of Appeals: Defense of Marriage Act is Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [May 31, 2012, 2:26pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653 "2012-05-31T14:26:03Z")\ **Posts on this page:** 20\ **Page:** 16
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 8:56pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/301 "2012-06-05T20:56:32Z")
> [@Bryan\_Ekers](#): > > It has a certain logic to it. If I may presume to offer a lay summary of the process, as I understand it: > > The function of Legislatures is to write the laws the people demand. They can’t do this effectively if the Judiciary is constantly second-guessing them. > > Thus, the Judiciary has evolved a number of rules for when and how it should intervene. These rules also help keep the application of the law as consistent as possible. > > When it comes time to debate if a given law should stand, the judiciary’s lowest level of consideration is called “rational basis”, by which a law can stand if the legislature had a reason for it. It doesn’t have to be a _good_ reason, or a _logical_ reason, and the law itself doesn’t have to be an effective response to the reason - it’s enough that a reason exists. > > The next level up is “intermediate scrutiny”, and for a case to qualify, certain conditions must be met, i.e. “it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.” This is where the legislature’s reason for passing the law gets studied and must, to some extent, be justified. > > The next level up is “strict scrutiny”, where the law or policy being challenged must be designed to address a “compelling governmental interest”, it must do so in a “narrowly tailored” fashion, and must do so by the “least restrictive means”. > > Related to all this is a system for evaluating the claims of people who say a law is discriminating against them. The “suspect classes” include race, national origin and religion. Sexual orientation will be considered when SCOTUS eventually gets a gay marriage case. If these classes are involved, the judiciary applies strict scrutiny, and the law or policy has to meet those conditions. > > Another class is “quasi-suspect”, and a case involving them would get intermediate scrutiny (and thus the law or policy has a lower standard to meet). Gender is a quasi-suspect class, as is legitimacy. > > Other classes, like age, disability, wealth, etc. invoke rational basis scrutiny. > > The gist is that the highest levels of scrutiny are afforded on narrower, more specific criteria. A law discriminating against blacks and a law discriminating against old people may both seem unfair, but the latter needs less argument in support. > > I don’t _think_ I’ve made any major errors in the above summary, though I’ve no doubt glossed over any number of important nuances, like state vs. federal interpretation and such. Eventually, I guess, SCOTUS _will_ decide that sexual orientation is a suspect class and they _will_ apply strict scrutiny, and the attorney arguing for the particular law under consideration will have to demonstrate that, among other criteria, the need to restrict gay marriage is a compelling governmental interest. I’m not sure how they’ll accomplish this since the reproduction argument is easily shot down, but it could be entertaining. > > On a more personal note, I believe Bricker’s post 107 was essentially asking me if I thought the Supreme Court was (or should be) “a body of wise philosopher-kings who decide what’s best for the country”, i.e. a bunch of latter-day Solomons who would make snap decisions on a case-by-case basis using what was obviously fair and just as a guideline. It is a tempting _concept_, I admit, as is a benign dictator, but… no, I agree that the Supreme Court should not be in the “wisdom” business, and that its operations should only override the legislature’s when absolutely necessary, and even then under consistent policies and guidelines. There won’t be any “we’ll cut marriage in half and you can _both_ have it” moments. > > I cheerfully admit, I don’t completely trust legislatures - too many examples of bad laws passed in the heat of the moment and too obviously in service to narrow interests - but a freely-elected legislature occasionally bitchslapped by an appointed judiciary is (so far) a pretty good system of government. Only one serious error. We call rational basis by that name for the reason that a governmental justification for a scheme must indeed have a tendency in logic to further the stated goal. The government, however, does not need to prove that it is actually true. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 9:00pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/302 "2012-06-05T21:00:49Z")
[quote=“Bryan\_Ekers, post:298, topic:623653”] It has a certain logic to it. If I may presume to offer a lay summary of the process, as I understand it: …snip… /QUOTE] Good summary but as the 1st district decided in this case there is another level that can be applied that is not intermediate. > [@](#): > > Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity. This is the “rational basis with bite” where they do not create a new suspect class. They held cases like the following at a higher level without creating a new class. U.S. Dept. of Agric. v. Moreno: A case where food stamps were denied to non-related households, it was directed towards hippies. City of Cleburne v. Cleburne Living Ctr.: A case where a mental health facility was denied a zoning permit due to a dislike of the icky mentally ill people. Romer v. Evans: Struck down a law in Colorado that restricted the ability to pass laws that protected homosexuals. All of these groups have had “Historic patterns of disadvantage suffered by the group adversely affected by the statute.” ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 9:04pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/303 "2012-06-05T21:04:11Z")
> [@Bryan\_Ekers](#): > > So you CAN deny a marriage to two people in their eighties? I trust this is written down somewhere, some statute that says in effect: > > "A county registrar of marriage may, at his or her discretion, deny granting a marriage license on the basis of ‘ewww, you’re like _old_ and stuff, gross!’ " No, we actually term it more like: " the state court is correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill, 125 U.S. 190 (1888)" ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 9:15pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/304 "2012-06-05T21:15:20Z")
> [@rat avatar](#): > > That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates Did “that body” ever get around to making reproduction a duty or obligation of marriage? > [@David42](#): > > One state out of fifty, with an arguable exception to the rule, and you think you have discovered the over-arching principle of marriage: No, only that YOU have NOT discovered the over-arching principle of marriage. You’re saying all swans are white - I only need one black swan to prove you wrong. And Utah was just the first (and so far, only) state I checked. I’m batting a thousand. For all I know, the other 49 have similar, possibly even stronger language on the issue. > [@](#): > > At anyrate, it was within Utah’s prerogative to grant this, just as it was within Utah’s prerogative to deny gay marriage. Well, SCOTUS might eventually disagree with that latter point. I think they have a good legal basis for doing so and I figure it’s the just and moral thing to do, anyway. > [@](#): > > The addition of the frivolous does not change the fundamental nature of marriage. Get it? Some things are fundamental, some are not. I don’t even care what you call fundamental any more. Show me where it’s a legal requirement and I’ll take note. Otherwise… > [@](#): > > Mixing of apples and oranges. I’m talking about where the right to marriage comes from, you’re talking about requirements placed on it. I don’t care in the least where the right to marriage came from. I don’t care if it was carved on a mountainside by ancient aliens, or was written by some guy last week on the back of a McDonald’s place-mat. Marriage exists as a legal status with certain privileges and certain requirements. Some citizens have access to it, some do not. I’d like to know the reason for the distinction and if there is none, I’d like that distinction abolished because I’m rather fond of the concept of equal treatment under the law. It’s not really any more complicated than that. > [@](#): > > Well the federal government can’t impose positive law mandating what marriage is upon the states. But via the 14th, they can forbid the states certain practices, like they did in Loving. Fine, if the outcome is that no state can deny a marriage licence on the basis of the genders of the applicants, no problem. Victory. Done. I suppose it _could_ happen that the Feds demand exclusive jurisdiction over marriage, but that would require significant legislation and be massive overkill, anyway. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 9:29pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/305 "2012-06-05T21:29:13Z")
> [@Bryan\_Ekers](#): > > Did “that body” ever get around to making reproduction a duty or obligation of marriage? At this point in time I have failed to find any reference to that result. Victorian era obviously makes this difficult too. Even mentioning undergarments was improper and while it was perfectly fine to spend the night in the embrace of your same sex friends the whole birthing process was for most part an off limits topic in polite society. I will continue to look. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 9:32pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/306 "2012-06-05T21:32:54Z")
> [@David42](#): > > Only one serious error. I consider yours more of a semantic quibble than a serious correction. > [@rat\_avatar](#): > > Good summary but as the 1st district decided in this case there is another level that can be applied that is not intermediate. I knew about “rational basis with bite”, but I understand there is some debate on it and SCOTUS hasn’t formalized it (though they have indeed treated “rational basis” cases variably, giving some more analysis than others, i.e. “with bite”), so I left it out in the interest of clarity, one layman trying to give a summary to another. _Romer_ especially seems to have gotten a bit nasty. I wouldn’t bet on Scalia and Thomas, who dissented, to come up with any pro-gay judgments anytime soon. Or ever, really. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 10:09pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/307 "2012-06-05T22:09:34Z")
In Meister v. Moore in 1877, a case where the Supreme court decided that common law marriages were still valid unless legislatively made invalid despite other requirements they said the following. > [@](#): > > “Though in most if not all the United States there are statutes regulating the celebration of marriage rites and inflicting penalties on all who disobey the regulations, yet it is generally considered that in the absence of any positive statute declaring that all marriages > not celebrated in the prescribed manner shall be void or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law without observing the statute regulations would still be a valid marriage.” > **As before remarked, the statutes are held merely directory, because marriage is a thing of common right, because it is the policy of the state to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law.** This is the closest I can find to match the claim that it was a right conveyed due to the right to reproduction. They are concerned about turning a legitimate child into a illegitimate child but that does mean the right is derived from a communities need to reproduce. The fact that this court calls it a common right, or an individual right makes me believe it was not a right granted due to some ideal of reproduction but that they held value in the arrangement it’s self. Of course this is opinion, and this case did not in anyway restrict limitations on who can marry that are passed by the state but we are looking for the mythical “traditional meaning”. I would say this is another data point away from the baby factory theory. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 10:20pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/308 "2012-06-05T22:20:03Z")
> [@rat\_avatar](#): > > This is the closest I can find to match the claim that it was a right conveyed due to the right to reproduction. To be clear this is not my claim. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 10:48pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/309 "2012-06-05T22:48:34Z")
> [@Bryan\_Ekers](#): > > I consider yours more of a semantic quibble than a serious correction. Somehow I am not surprised that you think a required rationality vs. permissible illogic is a “semantic quibble.” Your choice, you can go on failing to understand these sorts of cases all you like. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 5, 2012, 10:59pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/310 "2012-06-05T22:59:23Z")
> [@David42](#): > > Somehow I am not surprised that you think a required rationality vs. permissible illogic is a “semantic quibble.” Feel free to spell out the practical difference, if you can. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 5, 2012, 11:34pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/311 "2012-06-05T23:34:31Z")
> [@Bryan\_Ekers](#): > > Feel free to spell out the practical difference, if you can. I already did. You see, rationality makes sense, but illogic does not, though it sometimes looks like it does. I can’t believe you hold that Rational=Illogic, or close enough that the difference is mere semantic quibbling. But coming from the guy who also said that one’s ancestry is mutable, it’s still not really a surprise. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 5, 2012, 11:53pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/312 "2012-06-05T23:53:37Z")
After digging around for several hours I am handing the task of proving your stance back to those who think the primary reason for marriage is procreation. Even the most widely read college text on the subject from the first half of the 1800’s plainly calls it a contract and does not infer any relation the importance of reproduction. From “The Principles of Moral and Political Philosophy - William Paley” (a Christian apologist) > [@](#): > > Whether it hath grown out of some tradition of the Divine appointment of marriage in the persons of our first parents, or merely from a design to impress the obligation of the marriage-contract with a solemnity suited to its importance, the marriage-rite, in almost all countries of the world, has been made a religious ceremony;\* although marriage, in its own nature, and abstracted from the rules and declarations which the Jewish and Christian Scriptures deliver concerning it, be properly a **civil contract, and nothing more**. I see no reason to think this was not a common belief and it fits in with the concept of social contract. > [@](#): > > The husband promises, on his part, “to love, comfort, honour, and keep, his wife”: the wife on hers, “to obey, serve, love, honour, and keep, her husband”; in every variety of health, fortune, and condition: and both stipulate “to forsake all others, and to keep only unto one another, so long as they both shall live.” This promise is called the marriage vow; is witnessed before God and the congregation; accompanied with prayers to Almighty God for his blessing upon it; and attended with such circumstances of devotion and solemnity as place the obligation of it, and the guilt of violating it, nearly upon the same foundation with that of oaths. > > The parties by this vow engage their personal fidelity expressly and specifically; they engage likewise to consult and promote each other’s happiness; the wife, moreover, promises obedience to her husband. Nature may have made and left the sexes of the human species nearly equal in their faculties, and perfectly so in their rights; but to guard against those competitions which equality, or a contested superiority, is almost sure to produce, the Christian Scriptures enjoin upon the wife that obedience which she here promises, and in terms so peremptory and absolute, that it seems to extend to every thing not criminal, or not entirely inconsistent with the woman’s happiness. “Let the wife,” says St. Paul, “be subject to her own husband in every thing.” “The ornament of a meek and quiet spirit,” says the same apostle, speaking of the duty of wives, “is, in the sight of God, of great price.” No words ever expressed the true merit of the female character so well as these. I do not see where these duties of the married include procreation, although care of the children is the duty of the woman at this point in time. Obviously people valued children and demanded that parents live up to their obligations, but I am failing to find any evidence of marriage being directly tied to and the right derived from the states interest in procreation. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 6, 2012, 2:26am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/313 "2012-06-06T02:26:40Z")
> [@David42](#): > > I already did. You see, rationality makes sense, but illogic does not, though it sometimes looks like it does. > > I can’t believe you hold that Rational=Illogic, or close enough that the difference is mere semantic quibbling. > > But coming from the guy who also said that one’s ancestry is mutable, it’s still not really a surprise. I stand by my earlier assessment - semantic quibble. Plus it wasn’t me talking about ancestry and mutability, so you’re doubly dismissed. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 6, 2012, 2:32am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/314 "2012-06-06T02:32:53Z")
> [@rat\_avatar](#): > > After digging around for several hours I am handing the task of proving your stance back to those who think the primary reason for marriage is procreation. Well, I appreciate your efforts and the most I can pitifully offer in response is a vaguely-remembered description of premarital cohabitation I read in some book I have since lost, describing a Scandinavian custom of a couple living together for a year or so, only formally wedding after the woman became pregnant, i.e. after the relationship proved fertile. I unfortunately can’t offer additional detail, and probably the only reason I remember this at all was because it struck me as a perfectly reasonable and rational custom, far more so than trying to ensure the bride’s premarital virginity and such nonsense. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 6, 2012, 3:34am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/315 "2012-06-06T03:34:52Z")
> [@Bryan\_Ekers](#): > > Well, I appreciate your efforts and the most I can pitifully offer in response is a vaguely-remembered description of premarital cohabitation I read in some book I have since lost, describing a Scandinavian custom of a couple living together for a year or so, only formally wedding after the woman became pregnant, i.e. after the relationship proved fertile. I unfortunately can’t offer additional detail, and probably the only reason I remember this at all was because it struck me as a perfectly reasonable and rational custom, far more so than trying to ensure the bride’s premarital virginity and such nonsense. [I do not doubt there were, Most people tend to quote the MN Supreme court’s opinion on Baker v. Nelson.](http://scholar.google.com/scholar_case?case=14283825888588258352&hl=en&as_sdt=2&as_vis=1&oi=scholarr) > [@](#): > > The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis I know that is the one that David42 was offering as proof. However, no one wants to visit what biblical marriage was or discuss what marriage is documented int he bible. Invoking Genesis is pretty weak sauce if you want to make a claim towards one woman one man even if we weren’t a secular country. > [@](#): > > Genesis 4:19 And Lamech took unto him two wives. > Genesis 16:1-4 Now Sarai Abram’s wife bare him no children: and she had an handmaid, an Egyptian, whose name was Hagar. And Sarai said unto Abram, Behold now, the LORD hath restrained me from bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her. And Abram hearkened to the voice of Sarai. And Sarai … gave her to her husband Abram to be his wife. And he went in unto Hagar, and she conceived. > Genesis 25:6 But unto the sons of the concubines, which Abraham had… > Genesis 26:34 Esau … took to wife Judith the daughter of Beeri the Hittite, and Bashemath the daughter of Elon the Hittite. > Genesis 31:17 Then Jacob rose up, and set … his wives upon camels. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [June 6, 2012, 4:59am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/316 "2012-06-06T04:59:30Z")
> [@rat\_avatar](#): > > Good summary but as the 1st district decided in this case there is another level that can be applied that is not intermediate. > > This is the “rational basis with bite” where they do not create a new suspect class. They held cases like the following at a higher level without creating a new class. > > U.S. Dept. of Agric. v. Moreno: A case where food stamps were denied to non-related households, it was directed towards hippies. > > City of Cleburne v. Cleburne Living Ctr.: A case where a mental health facility was denied a zoning permit due to a dislike of the icky mentally ill people. > > Romer v. Evans: Struck down a law in Colorado that restricted the ability to pass laws that protected homosexuals. > > All of these groups have had “Historic patterns of disadvantage suffered by the group adversely affected by the statute.” This is a good point and mostly overlooked in the thread, which after all is supposed to be about the [1st Circuit decision](http://www.metroweekly.com/poliglot/Gill-FirstCircuit.pdf). (BTW, I have to mention that you have in many posts described this as a district court decision when, in fact, it’s a circuit court one.) Having reread the decision several times and having read the cases cited (iincluding those mentioned here), I’m less pessimistic than I stated in Post #25 that the Supreme Court is only likely to affirm (assuming it grants review) if it abrogates _Baker_. Rather, I can see a majority of the Court adopting the 1st Circuit’s reasoning as a “small step” which protects SSM but doesn’t require states to recognize it (except, perhaps, as a matter of Full Faith & Credit). **David42** would have it that the 1st Circuit’s equal protection - due process discussion is dictum, but that’s not how I read the decision. Nor, I think, will the Supreme Court. ---
**Author:** ![rat\_avatar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rat_avatar/32/255_2.png) [@rat\_avatar](https://boards.straightdope.com/u/rat_avatar)\ **Post date:** [June 6, 2012, 5:15am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/317 "2012-06-06T05:15:28Z")
> [@PBear42](#): > > This is a good point and mostly overlooked in the thread, which after all is supposed to be about the [1st Circuit decision](http://www.metroweekly.com/poliglot/Gill-FirstCircuit.pdf). (BTW, I have to mention that you have in many posts described this as a district court decision when, in fact, it’s a circuit court one.) Having reread the decision several times and having read the cases cited (iincluding those mentioned here), I’m less pessimistic than I stated in Post #25 that the Supreme Court is only likely to affirm (assuming it grants review) if it abrogates _Baker_. Rather, I can see a majority of the Court adopting the 1st Circuit’s reasoning as a “small step” which protects SSM but doesn’t require states to recognize it (except, perhaps, as a matter of Full Faith & Credit). **David42** would have it that the 1st Circuit’s equal protection - due process discussion is dictum, but that’s not how I read the decision. Nor, I think, will the Supreme Court. You are correct sir, my only non-hobby legal experience was on a Federal grand jury, in a district court, sorry it was out of habit that I was wrong to use the term, thank you for the correction. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 6, 2012, 10:16am UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/318 "2012-06-06T10:16:49Z")
[Interesting map](http://www.uscourts.gov/uscourts/images/CircuitMap.pdf) (pdf) showing the districts and circuits. I was a little surprised to see Tennessee has three districts, while several states with larger populations get by with one or two. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [June 6, 2012, 3:34pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/319 "2012-06-06T15:34:17Z")
> [@Bryan\_Ekers](#): > > Feel free to spell out the practical difference, if you can. You can’t figure out the difference, yet you think you are a credible poster at a place like the Straight Dope. What a hoot! \*\* RATIONAL:\*\* adjective 1. agreeable to reason; reasonable; sensible: a rational plan for economic development. 1. having or exercising reason, sound judgment, or good sense: a calm and rational negotiator. 1. being in or characterized by full possession of one’s reason; sane; lucid: The patient appeared perfectly rational. 1. endowed with the faculty of reason: rational beings. 1. of, pertaining to, or constituting reasoning powers: the rational faculty. **ILLOGIC:** the state or quality of being illogical; illogicality: His speech was full of illogic. **ILLOGICAL:** not logical; contrary to or disregardful of the rules of logic; unreasoning: an illogical reply. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 6, 2012, 3:38pm UTC](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653/320 "2012-06-06T15:38:17Z")
Congratulations, you know how to use a dictionary. I continue to stand by my assessment in #306. [Previous page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=15) [Next page](https://boards.straightdope.com/t/1st-circuit-court-of-appeals-defense-of-marriage-act-is-unconstitutional/623653.md?page=17)