Federal Appeals Court: DOMA unconstitutional

[Tender Branson]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

A unanimous panel of the U.S. Court of Appeals for the First Circuit said the act, which was signed by President Clinton and denies federal economic and other benefits for married people from same-sex couples married in states where it is legal, could not be justified under current precedents that protect minorities and other groups from discrimination.

For 150 years, Circuit Judge Michael Boudin wrote, the “desire to maintain tradition would alone have been justification enough for almost any statute . . . . But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

The Obama administration had decided not to defend the act, known as DOMA, because it had concluded that the law was unconstitutional. It was a step along the way in Obama’s “evolution” on same-sex unions. In May, the president said publicly that he supported same-sex marriage but that the issue should be left up to the states.

The judicial panel noted that most Americans live in states that have either passed laws or amended their constitutions to express, as DOMA does, that marriage is legal only if it’s between a man and a woman.

“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,” Boudin wrote. “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.”

http://www.washingtonpost.com/politics/defense-of-marriage-act-unconstitutional-federal-appeals-court-declares/2012/05/31/gJQAHDxO4U_story.html

[Brittain33]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

[Grumpier Than Uncle Joe]

Remind me why Clinton signed it to begin with?  Did he reallllllllly need to in order to be re-elected?

[Franzl]

Remind me why Clinton signed it to begin with?  Did he reallllllllly need to in order to be re-elected?

Don't forget how far we've come on gay rights since the 90s. I imagine the GOP could have successfully turned a veto into a winning issue.

[H.E. VOLODYMYR ZELENKSYY]

Happy time!

[True Federalist (진정한 연방 주의자)]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

How so?  I can't imagine any consistent constitutional argument that would require the Federal government to leave the definition of marriage as used by the Federal government to each individual State and yet not also require that all States recognize a marriage contracted in any other State.

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

[H.E. VOLODYMYR ZELENKSYY]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

How so?  I can't imagine any consistent constitutional argument that would require the Federal government to leave the definition of marriage as used by the Federal government to each individual State and yet not also require that all States recognize a marriage contracted in any other State.

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

As well they should. Check the full faith and credit clause.

[Oswald Acted Alone, You Kook]

Remind me why Clinton signed it to begin with?  Did he reallllllllly need to in order to be re-elected?

I'm not sure. It's not like DADT which was proggressive back then.

[🐒Gods of Prosperity🔱🐲💸]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

How so?  I can't imagine any consistent constitutional argument that would require the Federal government to leave the definition of marriage as used by the Federal government to each individual State and yet not also require that all States recognize a marriage contracted in any other State.

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

and yet that seems to be the argument that the appeals court made: that the feds should respect the states' designation here. That's a position I like, but whether it stands up to constitutional scrutiny I'm not sure.

[True Federalist (진정한 연방 주의자)]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

How so?  I can't imagine any consistent constitutional argument that would require the Federal government to leave the definition of marriage as used by the Federal government to each individual State and yet not also require that all States recognize a marriage contracted in any other State.

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

As well they should. Check the full faith and credit clause.

Which centuries of precedent concerning says that an action in State A is only forced to be recognized in State B if the law in State B allows for that action to be done in State B.  The full faith and credit clause cannot and will not be used to turn US marriage law (or any other area of the law) into a greatest common factor where what any one state decides would force the other forty-nine to follow.  Not only would the current court reject your interpretation of the full faith and credit clause 9-0, an all-time court would reject it 112-0.

[○∙◄☻¥tπ[╪AV┼cVê└]

Aren't both this and the Prop. 8 case going to the Supremes, anyways? I guess that's why they didn't get a Proposition to overturn Prop. 8 onto the ballot this year, they didn't want to potentially invalidate their court case. Of course since it just applies to California as the 9th circuit ruled, who cares?

[True Federalist (진정한 연방 주의자)]

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

and yet that seems to be the argument that the appeals court made: that the feds should respect the states' designation here. That's a position I like, but whether it stands up to constitutional scrutiny I'm not sure.

The decision is based upon an equal protection framework and I don't see any way that it can be upheld without establishing a precedent that could be used to force the states that do not allow for same-sex marriage to recognize the validity a same-sex marriage entered into in another state.

The First Circuit can claim all it wants that their decision is narrowly aimed at the Federal government, but it is not.

[🐒Gods of Prosperity🔱🐲💸]

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

and yet that seems to be the argument that the appeals court made: that the feds should respect the states' designation here. That's a position I like, but whether it stands up to constitutional scrutiny I'm not sure.

The decision is based upon an equal protection framework and I don't see any way that it can be upheld without establishing a precedent that could be used to force the states that do not allow for same-sex marriage to recognize the validity a same-sex marriage entered into in another state.

The First Circuit can claim all it wants that their decision is narrowly aimed at the Federal government, but it is not.

Definitely seems like they want to have their cake and eat it too - there's a federalist argument here, and an equal protection argument, and they don't mix very well in less there's a novel argument here I'm missing. I seized on the former in the reports I was hearing:

You must be logged in to read this quote.

That definitely sounds like they are prioritizing federalism, which would allow states to not recognize same-sex marriage, "equal protection" be damned.

[True Federalist (진정한 연방 주의자)]

Under any argument that I can conceive of, if DOMA were found unconstitutional then it would force every State to recognize gay marriage.

and yet that seems to be the argument that the appeals court made: that the feds should respect the states' designation here. That's a position I like, but whether it stands up to constitutional scrutiny I'm not sure.

The decision is based upon an equal protection framework and I don't see any way that it can be upheld without establishing a precedent that could be used to force the states that do not allow for same-sex marriage to recognize the validity a same-sex marriage entered into in another state.

The First Circuit can claim all it wants that their decision is narrowly aimed at the Federal government, but it is not.

Definitely seems like they want to have their cake and eat it too - there's a federalist argument here, and an equal protection argument, and they don't mix very well in less there's a novel argument here I'm missing. I seized on the former in the reports I was hearing:

You must be logged in to read this quote.

That definitely sounds like they are prioritizing federalism, which would allow states to not recognize same-sex marriage, "equal protection" be damned.

Actually that decision is not paean to federalism, but to state supremacy, so this decision would mean overturning Marbury v. Madison if its effects were to somehow be limited to the Federal government.  I just don't see that happening, nor do I see how striking down DOMA on an equal protection argument will not lead to state laws on the subject being effectively struck down on the same reasoning.

[🐒Gods of Prosperity🔱🐲💸]

So if Congress made a law saying the feds would recognize same sex marriages from all states where legal, but say specifically other states are not required to - would that be struck down as well?

[True Federalist (진정한 연방 주의자)]

So if Congress made a law saying the feds would recognize same sex marriages from all states where legal, but say specifically other states are not required to - would that be struck down as well?

If one accepted the equal protection argument that the first circuit is making.  Tho in an attempt to try and narrow the case and tempt the Supreme Court into buying their bill of goods, the court excluded the DOMA provision concerning the recognition of other states same-sex marriages.

What would be interesting would be if the Feds ever passed an EOMA (Equality Of Marriage Act) that required a state to accept the validity of a same-sex marriage done in another state.  Would that be a valid use of Congress' power under Article IV Section 1 to "by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." ?

[Brittain33]

I'm confused. Isn't the "Alabama must recognize my marriage" governed by a separate part of DOMA not covered here? Why does "the Feds must respect precedent and recognize my marriage" imply something in a different part of DOMA? Seems like a red herring to me. Why "bill of goods"?

There is very little precedent for the federal government to decline to recognize a legal state marriage. That's a high bar to climb. There is ample precedent for states to define marriage how they like. One could make an argument that they shouldn't be allowed to exclude same-sex couples because of equal protection, and possibly win, but it's a different threshold because it applies to states which have always had regulations on marriage and not the feds. I can easily see Anthony Kennedy deciding that having the feds pick and choose marriage was so unusual that you need a compelling reason to do it, but that equally so the Court isn't going to meddle in how states define marriage as long as it's consistent with their state constitutions. And then in 30 years we can deal with invalidating those discriminatory amendments, but not have the current ruling based in Mass. to have that impact. 

[Brittain33]

Here's a thought. If Anthony Kennedy sees this case coming down the pike as a slam-dunk for constitutional precedent and recognizing legal state SSM, he may be less likely to be the 5th vote to side with the 9th circuit and overturn Prop 8, because that case is further out on a limb.

[greenforest32]

So DOMA will reach SCOTUS next year? 17 years after its passage? So quick...

At least things are moving in the right direction.

http://www.nytimes.com/2012/05/31/us/illinois-lawsuits-challenge-gay-marriage-ban.html

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[True Federalist (진정한 연방 주의자)]

I'm confused. Isn't the "Alabama must recognize my marriage" governed by a separate part of DOMA not covered here? Why does "the Feds must respect precedent and recognize my marriage" imply something in a different part of DOMA? Seems like a red herring to me. Why "bill of goods"?

because the First Circuit ruling is ultimately not based on a Federalism argument, tho it does employ one as a legal smokescreen.  It is based on an Equal Protection argument.  It argues that the Equal Protection rights of certain individuals are strong enough that the Federal government cannot come up with a different definition of marriage than the States.  If those rights are so strong that it causes State law to preempt Federal law then I cannot see how they would not also preempt the laws of other States and require them to recognize same-sex marriages done in other States.

[Brittain33]

I'm confused. Isn't the "Alabama must recognize my marriage" governed by a separate part of DOMA not covered here? Why does "the Feds must respect precedent and recognize my marriage" imply something in a different part of DOMA? Seems like a red herring to me. Why "bill of goods"?

because the First Circuit ruling is ultimately not based on a Federalism argument, tho it does employ one as a legal smokescreen.  It is based on an Equal Protection argument.  It argues that the Equal Protection rights of certain individuals are strong enough that the Federal government cannot come up with a different definition of marriage than the States.  If those rights are so strong that it causes State law to preempt Federal law then I cannot see how they would not also preempt the laws of other States and require them to recognize same-sex marriages done in other States.

Again, this is where I think the distinction that the feds have historically deferred to states to make marriage law and would need to make a strong case to make an exception here is the distinguishing factor. The federal government isn't in the habit of defining which marriages they'll recognize or won't, so why start now? The supreme court shows lots of deference to the states' ability to make their own policy. The same standard can carry different weight if the states or feds are making policy.

Besides that, having the federal government recognize legal state marriages is much less controversial, and much less likely to lead to civil disobedience and public rage, than the Supreme Court ordering clerks in Mississippi to issue marriage licenses to same-sex couples in 2012 when the state voted like 85% for their DOMA. That's certainly a consideration of the court.

If the concern is that federalism is a "smokescreen," isn't it likely that Kennedy would find for the plaintiffs on a federalism argument and not equal protection anyway?

[Torie]

It seems like equal protection rather than federalism to me. Sure a state can have same sex marriage, but why do the Feds have to hand out money and whatever based on what a state allows for a marriage? The states can do their thing, and the feds theirs. That's federalism. To force the feds to hand out benefits or costs based on a state definition of who is married, needs the instrument of equal protection, or a Kennedy "fundamental expression of liberty" theory. I tend to doubt Kennedy will bite.

[Oswald Acted Alone, You Kook]

If it's struck down, will same-sex marriage be legal in the other 42 states?

[True Federalist (진정한 연방 주의자)]

Again, this is where I think the distinction that the feds have historically deferred to states to make marriage law and would need to make a strong case to make an exception here is the distinguishing factor. The federal government isn't in the habit of defining which marriages they'll recognize or won't, so why start now?

For a long time, the Federal and State governments used the same core definition of marriage: one man and one woman.  It is quite disingenuous to say that because the Federal government saw no need for its own definition of marriage when the definition it would have come up with was the same as that of the States that it is now unable to independently define it.  Indeed, until it became apparent that there was going to be a disparity in the definition of marriage between the States, there was no need for DOMA, and when it did become apparent, DOMA was quickly passed.

The supreme court shows lots of deference to the states' ability to make their own policy. The same standard can carry different weight if the states or feds are making policy.

Except that DOMA does not force States to define marriage in any particular manner.

Besides that, having the federal government recognize legal state marriages is much less controversial, and much less likely to lead to civil disobedience and public rage, than the Supreme Court ordering clerks in Mississippi to issue marriage licenses to same-sex couples in 2012 when the state voted like 85% for their DOMA. That's certainly a consideration of the court.

No, that most certainly should not be a consideration of the Court, but it should be a Consideration of the Congress when it reaches the point where it wants to revise DOMA to allow for Federal recognition of State-recognized same-sex marriages.

If the concern is that federalism is a "smokescreen," isn't it likely that Kennedy would find for the plaintiffs on a federalism argument and not equal protection anyway?

While I'm certain Kennedy would love to stick his fingers in this pie, I don't see how he could do so in the fashion you imagine.

Without the equal protection foundation to build upon, there is no federalism argument to be made here.  The Federal government is not forcing the States to use a particular definition of marriage.  (The idea that the Federal government requiring the States to use a Federal definition in managing a Federally funded program that States can voluntarily participate in is forcing the State to do anything has been explicitly rejected in the past, so precedent would need to be overturned to find that was the case here.)

[Torie]

If it's struck down, will same-sex marriage be legal in the other 42 states?

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.