Last week's decision by the First Circuit outlines what I would call the conservative case for finding DoMA to be unconstitutional. Several press reports have noted that two of the three judges on the panel, including the opinion's author, were appointed by Republican presidents, so it's no surprise that there are three distinctive aspects of Judge Boudin's reasoning with Republican appeal.
First, the Court of Appeals rejected any suggestion of animus in DoMA's legislative history, instead accepting the facial validity of defending traditional heterosexual marriage as a legitimate state interest. The result is anodyne, but it may establish the least uncomfortable terms for a debate among the Justices:
Preserving this institution is not the same as "mere moral disapproval of an excluded group"...Traditions are the glue that holds society together, and many of our traditions rest largely on belief and familiarity - not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.
Then why isn't DoMA constitutionally acceptable?
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.
I can just hear Kennedy and Scalia debating those points.
Second, as indicated in the previous quote, Boudin's opinion emphasizes that the closer than rational basis scrutiny that he is applying to DoMA does not come from minority group concerns alone but from the combination in this case of equality claims with state sovereignty claims. The commonwealth of Massachusetts also challenged DoMA, on the grounds that it unlawfully invaded a zone of law - marriage - traditionally regulated primarily by states. Could this argument get Chief Justice Roberts to bite? I hope not, because it also erects a barrier to invalidation of state bans on gay marriage, which surely must come at some point in the future. (It is also problematic on broader grounds of state-federal power division.)
The court explicitly rejected heightened scrutiny as the applicable standard of review. No federal appeals court has applied heightened scrutiny under the Equal Protection Clause to sexual orientation classifications, so this was not a step backward. The Justice Department argued that heightened scrutiny was the correct standard, but the First Circuit wasn't buying it. The Supreme Court has blinked at each opportunity so far to opt for anything more than rational basis, although its review in fact has not been overly deferential. So, the First Circuit is saying, just keep on keeping on, and you can strike down DoMA.
Lastly, in dicta, the First Circuit accepts that Baker v. Nelson (409 US 810) "is precedent binding on us unless repudiated by subsequent Supreme Court precedent." Baker is a 1972 case in which the Supreme Court summarily affirmed a Minnesota Supreme Court ruling that the exclusion of gay couples from marriage was constitutional. When there is no opinion, only a summary ruling, a decision's precedential effects are narrowly limited. LGBT rights groups have argued, pretty successfully, that subsequent decisions such as Romer and Lawrence have undercut Baker. But the First Circuit wasn't buying this either.
When a DoMA challenge reaches the Supreme Court, it need not address the continuing validity of Baker in order to rule on the constitutionality of DoMA. (The section of DoMA under challenge governs only federal - not state - recognition of same-sex marriages.) So the inclusion of the Baker point by the First Circuit seems to me more like a loud signal that the Supreme Court can kill DoMA and leave all those state law marriage bans in place.
It's not the most elegant or inspiring analysis of why DoMA is unconstitutional - but it just might work.