In today’s decision in the case of Commonwealth of Massachusetts v. US Dept. of Health and Human Services, et al., the US Court of Appeals for the First Circuit ruled that the federal Defense of Marriage Act (“DOMA”) is unconstitutional in that it denies federal benefits to lawfully married same-sex couples. DOMA was hastily enacted in 1996 in response to Hawaii’s consideration of allowing same-sex marriage. DOMA does not prevent same sex marriage, but it prevents same-sex couples who were married in states permitting same-sex marriage from receiving benefits that heterosexual spouses receive, such as the financial benefits of filing joint tax returns or social security benefits for a surviving spouse.
Basically, the ruling holds that a court has to give a hard look to make sure there is more than just a plausible reason for imposing different treatment on a group. There must be some real justification given for the law, and there was none here. The First Circuit carefully reviewed Supreme Court precedent of equal protection cases and weighed them rather conservatively in its analysis. It was careful not to overreach. The court stated that under existing precedent, same-sex marriages do not require strict scrutiny (the standard used in race cases) or intermediate scrutiny (the standard used in gender cases), but held that something more is required than the basic rational basis standard used in commercial cases. The court noted that the Supreme Court has intensified scrutiny of purported justifications of statutes where minorities are subject to discrepant treatment and has limited the permissible justifications.
In areas such as family law, where state regulation has traditionally governed, the federal government may need to show its justification “with special clarity.” The Supreme Court has required this in other situations involving historically disadvantaged or unpopular groups, basing its decisions on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.
The court also stated that the federalism concerns involving the right of states to legalize same-sex marriage, while they may not be sufficient on their own to invalidate DOMA, play a unique role here in the reinforcing the equal protection concerns. “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.” (Opinion, p. 30). Massachusetts and New Hampshire within the First Circuit (which also includes Rhode Island, Maine, and Puerto Rico) have legalized same-sex marriage.
Today’s decision is a large step toward equal rights for same sex marriage, building on recent momentum created by President Obama’s endorsement of same sex marriage, and the decision of the US Court of Appeals for the Ninth Circuit in February of this year ruling that California’s Prop 8 ban on same sex marriage was unconstitutional. Of the three judges who made this unanimous ruling, two had been appointed by Republican presidents.
Both the First Circuit’s decision on DOMA and the Ninth Circuit’s decision on Prop 8 deal with narrow issues, but do not address the question of whether there is a constitutional right to same-sex marriage.
Practically speaking, there is no immediate effect from today’s decision, because the First Circuit stayed its decision while an expected appeal to the US Supreme Court is sought. Although President Obama previously declared that his Administration would not defend DOMA in the courts, House Speaker John Boehner organized the Bipartisan Legal Advisory Group (BLAG), a group of congress members who have been defending DOMA in this case. BLAG is expected to ask the Supreme Court to hear the case. A decision by the US Supreme Court, whether affirming or overturning the First Circuit’s decision, would apply nationwide. The First Circuit case and the Ninth Circuit case, if both accepted by the Supreme Court, would likely be heard in the same session.
The First Circuit’s analysis is fair and measured. If the Supreme Court is honest about its own precedents, it will be hard-pressed not to agree with the First Circuit’s decision.
Susan E. Stenger is a partner at the Boston law firm of Burns & Levinson LLP, where she focuses on appellate practice.