In a major victory for gay rights, the United States Court of Appeal for the First Circuit in Boston has found the Defense of Marriage Act unconstitutional in a unanimous ruling. The court found that the 1996 law discriminates against homosexual couples. The law was supported by Bill Clinton and by the Obama Administration until the latter recently reversed its position in court and withdrew support for the law before the Court. The case is Gill v. Office of Personnel Management.
Notably, the decision did not rule on the key issue of full faith and credit — whether states without same-sex marriage can be forced to recognize gay unions or divorces from states where they are legal. The law was struck down as denying the right of the state to determine how to define marriage and denies gay couples federal benefits given to heterosexual married couples.
The case sets up an extremely likely Supreme Court review on the issue with the same-sex case in the Ninth Circuit moving toward the Court. Ironically, today we will be filing the summary judgment motion in the Sister Wives case involving plural marriage and polygamy.
Judge Michael Boudin, a Republican appointee, wrote the opinion. Another Republican appointee signed on — Judge Juan Torruella. Before going to the Supreme Court, there may be a petition for an en banc review from the entire First Circuit. The decision upholds the ruling of district court Judge Joseph L. Tauro.
The discussion of the relevant standard for equal protection is interesting as is the following statement on the defense of the act as simply supporting traditional marriage:
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. 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.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. 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. 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.