A Blow, but a Softer One, to the Defense of Marriage Act

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While today's ruling is a victory for equality advocates, questions about the law's premise remain to be decided by the Supreme Court.

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For the dwindling number of supporters of the Defense of Marriage Act, the Clinton-era federal law that defines marriage as only between a man and a woman, the bad news Thursday from Boston actually could have been much worse.

Yes, it's true that the 1st U.S. Circuit Court of Appeals unanimously struck down the guts of the law -- the first federal appeals court in the country to do so. The ruling declares that Section 3 of the law cannot be used to deprive lawfully-married same-sex couples of the federal rights and benefits to which lawfully married opposite-sex couples are given. The case now is styled Massachusetts v. U.S. Dep't Health and Human Services.

Yes, it's true that two of the three judges who issued Thursday's ruling are Republican appointees. Judge Michael Boudin is a nominee of the first President Bush. Judge Juan Torruella is a nominee of President Reagan. When you factor in U.S. District Judge Joseph Tauro, the Nixon appointee who first struck down the law in 2010, it means that three of the four judges responsible for DOMA's current predicament are GOP infused.

And, yes, it's true, the ruling jeopardizes enforcement of the federal Marriage Act all across the country. Sure, it can still be cited (in the 1st Circuit and elsewhere) to deny same-sex couples their benefits. But those denials are more legally suspect today than they were yesterday. The Supreme Court now must resolve this conflict -- and today's decision virtually guarantees that the justices will have to act sooner rather than later.

All that is true. But the language of the 1st Circuit's 35-page ruling is no Jeremiad against DOMA or opponents of same-sex marriage. It is not something likely to be as widely quoted as other recent rulings over same-sex marriage in America. And it clearly does not purport to be the definitive or last word on the subject. We have here instead a modest ruling which accomplishes four significant things at the same time (something, not incidentally, that intermediate appellate courts are supposed to do as they funnel cases up the ladder to Washington).

The ruling: 1) narrows the scope of the trial judge's decision which preceded it; 2) offers the Supreme Court several avenues of precedential escape should the justices subsequently wish to use them; 3) takes a broader view of federalism as it relates to this law and its impact upon state marriage laws, and; 4) is notably diplomatic in its brief assessment of the "work" Congress did in passing the statute.

The 1st Circuit panel first acknowledged that the questions raised by the statute in the case didn't necessarily fit into the factual underpinnings offered by legislators when they enacted the law in 1996 or the constitutional standards typically employed by judges to determine the validity of such legislation. Judge Boudin wrote:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Next, the judges declared that the law should be reviewed with "special clarity"-- a legal standard which they wrote should be higher than the "rational basis" test employed for economic legislation (which almost always results in statutes being upheld) but lower than the "compelling interest' test employed in cases of discrimination (which often result in statutes being struck down). Judge Boudin wrote:

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

And then came the nut graph of the whole opinion, one of the very few in which the judges shared any views on the merits of the federal same-sex marriage ban. This is as far as this panel was willing to go in criticizing Congress for its rush to enact DOMA without conducting extensive hearings on the matter. "Some of the odder consequences of DOMA," Judge Boudin wrote, "testify to the speed with which it was adopted." He added:

DOMA does not increase benefits to opposite-sex couples -- whose marriages may in any event be childless, unstable or both -- or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

These are some of the arguments that same-sex marriage foes and their attorneys must answer when they take the case to Washington. And what the 1st Circuit is saying is that there is such a lack of factual bases for the conclusions expressed and implied in DOMA that it may be indefensible when given any sort of meaningful judicial review. There were no grand hearings. There is no long record of testimony and statistics. There was mostly only a legislative rush to make a moral judgment hostile to homosexuality.

Judge Boudin concluded:

[W]ithout resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

If we are right. That's the key clause of the above graph. There is no guarantee that the justices will accept the "special clarity" standard proposed here by the 1st Circuit. The Supreme Court could still theoretically consider the law under rational review (the 1st Circuit, unlike Judge Tauro, found the law could pass this test). But that would mean that Justice Anthony Kennedy, who has authored two major rulings in the past 20 years upholding gay rights (Romer v. Evans and Lawrence v. Texas) would have to do a complete about-face. And that's not likely.

Here's how the 1st Circuit summed up its principal analysis:

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.

No matter what test the Supreme Court gins up to resolve this case, whether it is an old standard or a new one, it's easy to imagine Justice Kennedy signing on to the precise language above, the construction his fellow Republican appointees from Boston just used to keep DOMA on the ropes. Finally, after 15 years of discriminatory effect, time may be up for this dubious law.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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