Federal appellate courts in San Francisco and Boston have issued decisions within a week of each other that could prove to be major victories for LGBT rights nationwide.
On May 31, the 1st Circuit Court of Appeals in Boston upheld a decision of the Massachusetts federal District Court holding that Section 3 of the Defense of Marriage Act, DOMA, violates the U.S. Constitution’s guarantee of equal protection.
On June 5, the 9th Circuit Court of Appeals in San Francisco refused to permit marriage equality opponents to reargue the constitutionality of Proposition 8 before a larger panel of judges than the three-judge panel that had already held the measure unconstitutional under the federal Constitution.
With respect to DOMA, a three-judge panel of the 1st Circuit ruled unanimously that the statute violated the federal equal protection clause because it denied married same-sex couples benefits readily available to their heterosexual peers, such as the right to file joint federal tax returns, Social Security survivor benefits and federal employee health insurance, the New York Times reported May 31.
Passed by Congress and signed into law by President Bill Clinton in 1996, DOMA, among other things, prohibits the federal government from in any way recognizing or giving effect to any same-sex marriage entered into in any state.
The cases before the 1st Circuit Court of Appeals were originally filed in the U.S. District Court for the District of Massachusetts by state Attorney General Martha Coakley and Gay and Lesbian Advocates and Defenders, GLAD.
In February 2011, the Obama Justice Department announced it had concluded that DOMA was unconstitutional, and that it would therefore no longer defend the statute in court. DOMA is currently being defended by the so-called “Bipartisan Legal Advisory Group,” set up by U.S. House Speaker John Boehner, R-Ohio.
The 1st Circuit panel applied the lowest level of constitutional scrutiny, the “rational basis” standard. Pursuant to that test, for the statute to be upheld, DOMA’s defenders had only to convince the court that there was some rational relationship between the statute and its purported goals. They failed.
“[M]any 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,” Judge Michael Boudin, a George H.W. Bush appointee, wrote for the court. “One virtue of federalism is that it permits the 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.”
The court went on to make short work of the rationales advanced for DOMA. It rejected the notion that the statute preserves “scarce government resources,” holding that the law might actually cost the government money.
DOMA proponents also contended that the statute advanced a government interest in “defending and nurturing the institution of traditional, heterosexual marriage.” The court rejected this as well, writing, “Although the House report is filled with encomia to heterosexual marriage, 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.”
The court also stated that “moral disapproval alone cannot justify legislation discriminating on this basis.”
The 1st Circuit panel did not address the issue of whether same-sex couples have a constitutional right to marry. Nor did it rule on that part of DOMA that permits states to refuse to recognize marriages legally entered into in other states.
Recognizing that the case is probably headed for the U.S. Supreme Court, the court stayed its ruling pending that appeal. DOMA proponents now have 90 days to seek review by the high court, which, if granted, would likely result in a decision sometime next year.
LGBT advocates hailed the decision. “This ruling will return the federal government to its historic role of respecting marriages performed in the states, without carving out a ‘gay exception’ that denies thousands of protections,” said Freedom to Marry’s Evan Wolfson.
Social conservatives were livid. Brian Brown of the National Organization for Marriage accused the judges, two of whom are Republican appointees, of “imposing their liberal, elitist views of marriage on the American people.”
Fifty-four percent of Americans now believe same-sex marriage should be legal, with 42 percent opposed, according to a CNN/ORC International Survey released June 6.
On the Prop. 8 front, the 9th Circuit on June 5 rejected what is known as “en banc” review of a ruling issued in February by a three-judge panel of that court holding that California’s state constitutional same-sex marriage ban violated the federal Constitution.
The rules governing federal appellate procedure generally permit the loser before a three-judge appellate panel to petition the court to appoint a larger panel, sometimes consisting of all of the court’s judges, to rehear the case. The court may either accept or reject such a petition.
Prop. 8 proponents’ petition was rejected. As is typical, the court gave no reason, stating in its order simply that “[a] majority of the panel has voted to deny the petition for rehearing en banc.” Twenty-six judges sit on the 9th Circuit.
Three judges—Diamuid O’Scannlain, Jay Bybee and Carlos Bea—issued a sharp dissent, accusing the panel that invalidated Prop. 8 of “gross misapplication” of U.S. Supreme Court precedent and “overul[ing] the will of 7 million California ... voters.”
Prop. 8 proponents’ only recourse now is to seek review in the U.S. Supreme Court. They have 90 days to file their request, which it appears they will do.
“We are pleased to petition the Court to hear this case,” a statement from the pro-Prop. 8 Alliance Defense Fund says. “The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent.”
The ruling overturning Prop. 8 is stayed pending action by the high court.
“We’re not to the end of the line yet, but we are vastly, vastly closer,” said plaintiffs’ attorney Ted Olson.
“Today’s order is yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation,” said American Foundation for Equal Rights co-founder Chad Griffin, who remains on the AFER board in his new job as president of the Human Rights Campaign.
Experts are split as to whether the Supreme Court will agree to hear the Prop. 8 case. Because the 9th Circuit’s decision is relatively narrow, applying only to California and only to situations where a right has first been granted and then taken away, some believe the high court will not see it as an appropriate vehicle for deciding the existence of a federal constitutional right to same-sex marriage.
Most believe the 1st Circuit’s DOMA ruling to be more likely to be accepted by the Supreme Court.
Some observers, including out Democratic strategist and former advisor to President Clinton Richard Socarides, have raised the possibility that the high court might consolidate the DOMA and Prop. 8 cases.
“The dark days of discrimination continue to crumble down,” Perry v. Brown plaintiff Jeff Zarrillo told Frontiers. Zarrillo’s partner, Paul Katami, expressed his joy via a photo sent from the road on the AIDS/LifeCycle ride.