DoMA: Killing it softly

by on June 4, 2012  •  In Constitutional law, DoMA, Supreme Court
Supreme Court

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.


7 Responses to DoMA: Killing it softly

  1. DH Mazur June 4, 2012 at 7:26 PM

    You wrote: “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 . . . .”

    Perhaps it’s not so bad, and even good. This opinion sets up an argument that there are also limits on whether states can refuse to recognize marriages performed in other states. Gill holds that the federal government cannot pick and choose among state marriages without having a real reason, given the primary role of states in regulating marriage. It’s somewhat similar to the reasoning used to limit Commerce Clause authority in areas of traditional state concern–the same cases conservatives champion in opposing the Health Care Act.

    There’s an equally important constitutional ideal at stake when states refuse to recognize marriages performed in other states. We have always enforced limits on state-against-state retaliation, competition, greed, and general nastiness when those actions undermine national unity and citizenship. It’s an important theme of the constitutional law of commerce, full faith and credit, and privileges and immunities.

    Why shouldn’t this general ideal be relevant in state-by-state marriage recognition? I’m not taking the position that states must always recognize other states’ marriages, but like in Gill, you have to have some real reason. How can we be a nation of *united* states when marriages can appear and disappear as same-sex couples move about the country? Without a real reason, like in Gill, states should not be able to pick and choose among marriages conducted elsewhere.

    Gill relies on a principle of vertical federalism; the next argument will rely on horizontal federalism. Both are important constitutional ideals. States have assumed they can do anything they want to express their disapproval of same-sex marriage, including “unmarrying” couples who cross a state border, but that may be a step too far. Even if states can refuse to conduct such marriages themselves, there are limits to how much they can undermine the decisions of other states.

    In the end, I wonder whether ideals of federalism and reciprocity–the federal government’s respect for state judgments, and the respect that states owe one another–will be an easier principle for conservatives to accept than an equal-protection or due process theory.

    Diane Mazur, University of Florida, and author of “A More Perfect Military: How the Constitution Can Make Our Military Stronger”

  2. daftpunkydavid June 5, 2012 at 2:52 AM

    “The court explicitly rejected heightened scrutiny as the applicable standard of review.”

    were they bound to do this? i heard that they decided to do this because of a prior dadt case… could they have overturned that case?

    • Michael Ejercito June 12, 2012 at 4:30 PM

      No, only the court sitting en banc or the Supreme Court could have done that.

      There are two observations I made.

      This is not the first time a court held that equal protection claims by same-sex couples are foreclosed by the lack of a right to same-sex marriage. See Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 at 786-787 (Ak. Sup. Ct. 2005)

      The First Circuit held that DOMA would satisfy rational basis scrutiny. And as such, a district court or appellate panel in the Circuit would have to reject challenges to DOMA if state sovereignty is not implicated, such as application of DOMA to immigration law, military benefits, or Puerto Rico. Indeed, in the First Circuit there is a challenge to the application of DOMA to military benefits. Because military benefits do not implicate state sovereignty, the challenge must fail in the district court.

  3. Jay June 5, 2012 at 9:37 AM

    There are so many things about this decision that are troubling, despite its positive conclusion that section 3 of DOMA is unconstitutional. Am I right to assume that if the Supreme Court accepts this case, they are free to find the section unconstitutional (or not) on their own anaylysis? I.e., they will not be bound by some of the considerations that shaped the decision in the first circuit. Kennedy’s opinions in Romer and Lawrence are expansive ones. If he decides DOMA is unconstitutional (and can get three and preferably four other justices to agree), I suspect that he will not feel limited to the analysis offered by Judge Boudin unless there is some rule I am not aware of.

    BTW, the new design of HOJ is beautiful. Congratulations.

    • Michael Ejercito June 12, 2012 at 2:17 PM

      Romer was not all that expansive. It did not disturb prior equal protection principles. In effect, it only held that the prohibition of discrimination protections to homosexuals that are permitted to heterosexuals violate equal protection if such prohibition is not at least rationally related to a legitimate government interest. It would be hard to see how this undercut Baker, since nothing in Baker suggested that laws infringing on homosexuals’ equal protection interests are per se valid. Such a reading of Baker would require it to contradict prior Supreme Court precedent.

      Lawrence, of course, overruled prior precedent. It established that privacy includes private, consensual sodomy among adults. But of course it does not touch Baker because marriage is a public act, and marriage can not be traced to a purpose of punishing private, consensual sodomy.

  4. Pingback: Another court finds DoMA unconstitutional | Hunter of Justice

  5. Pingback: Supreme Court forecast: Windsor's the one and only

Leave a Reply

Your email address will not be published. Required fields are marked *