Narrow Ruling on DOMA May Be What Gay Advocates Need

            The federal appeals court that struck down the key part of the federal Defense of Marriage Act (DOMA) threaded a needle to find legal precedents for ruling that the law improperly discriminates against gays and lesbians. The narrowness of the decision may make it easier for the Supreme Court to come to the same conclusion in an appeal likely to reach the justices in their next term.

            The decision by the First U.S. Circuit Court of Appeals in Massachusetts v. U.S. Dep’t of Health and Human Services (May 31) struck down the section of the 1996 law that denies to same-sex couples any federal benefits normally provided to opposite-sex couples — for example, the ability to file joint instead of separate federal income tax returns. Lawyers from the Boston-based Gay and Lesbian Advocates and Defenders (GLAD) represented legally married couples and widowers from Massachusetts in challenging the law as a violation of equal protection principles.

            The lawyers had two main arguments, either of which could doom not just DOMA but also all of the state bans on same-sex marriages. They argued, first, that sexual orientation is a “suspect classification” that triggers the highest level of constitutional review: “strict scrutiny.” DOMA fails that test, they argued, because the law does not advance any “compelling” government interest nor is “narrowly tailored” to serve any such interest.

At the other end of the constitutional spectrum, the lawyers argued that DOMA cannot survive even the minimal “rational basis” standard of constitutional review. The law does not advance any legitimate governmental interest whatsoever, the lawyers contended.

            The three-judge panel — consisting of two Republican and one Democratic appointee — rejected both of those positions. Writing for the panel, Judge Michael Boudin explained that the First Circuit had refused three years ago to recognize sexual orientation as a suspect classification and that the panel was bound by that precedent. Boudin added that creating a new suspect classification would have “far-reaching implications” by casting doubt on marriage laws “in a huge majority of individual states.”

            Applying the standard rational-basis test, the panel found that DOMA passes constitutional muster, if barely. The 1996 Congress claimed that DOMA would save the federal government money – by limiting benefits or tax preferences to opposite-sex couples only. Boudin said Congress was entitled to deference on that issue even though experts today say that recognizing same-sex marriages could actually save money for the federal government.

            Seemingly out of nowhere, however, Boudin found a different level of constitutional review to apply to DOMA—a standard that it fails, badly. Boudin said that the Supreme Court, in several cases, had engaged in “a closer than usual review” of laws that affected a “historically disadvantaged or unpopular group” and that had “thin, unsupported, or impermissible” justification.

            In one of those cases, U.S. Dep’t of Agriculture v. Moreno (1973), the court struck down a law denying food stamps to households containing unrelated individuals. The court said the law denied food stamps to many needy households and appeared to be motivated solely by a “desire to harm a politically unpopular group.”

            A decade later, the court in City of Cleburne v. Cleburne Living Center (1985) overturned a local ordinance denying a special permit for a group home for the mentally disabled. As in Moreno, the court said the justification for the ordinance seemed thin and the motivation appeared to be “negative attitudes” toward an unpopular group.

            Even without creating a new suspect classification, Boudin acknowledged that gays and lesbians “have long been the subject of discrimination.” The Supreme Court’s somewhat overlooked precedents dictate a “more careful assessment” than usual of laws that disadvantage them, as DOMA does.

Boudin then went through and rejected each of four possible justifications for DOMA offered by former solicitor general Paul Clement on behalf of the House Republican leadership seeking to uphold DOMA. (At President Obama’s direction, the Justice Department is not defending the law.)  Saving the federal government money would be an impermissible justification even if true, Boudin said.

As to the other three rationales, Boudin found no evidence that the law promotes child-rearing in “stable” marriages since it extends no benefits to opposite-sex couples and cannot prevent same-sex couples from bearing or adopting children. Moral disapproval of homosexuality is now recognized as an impermissible justification, Boudin continued. And the final supposed rationale — to “freeze” the marriage issue for further debate — makes no sense, Boudin said, because the law has no expiration date.

In a final point, Boudin noted that marriage has traditionally been a state prerogative. Acknowledging Massachusetts’ role as plaintiff in one of the consolidated cases, Boudin said the state can insist that a federal law interfering with its marriage policies have some particular federal interest—and DOMA has none.

The appeals court stayed its ruling pending the inevitable appeal to the Supreme Court, which seems likely to get the case in time for a decision by June 2013. The high court has been slow to take on cases touching on gay marriage. The DOMA case gives the justices a chance to take on this issue with a small bite. And the First Circuit’s ruling charts a path that steers clear of creating new precedents. Gay rights advocates may not get exactly what they want out of this case. But they may just get what they need.