Bloomberg News

Defense of Marriage Act Ruled Unconstitutional by Court

June 01, 2012

The heart of the U.S. Defense of Marriage Act, which definines marriage as only a heterosexual union, was ruled unconstitutional by a federal appeals court in Boston.

Plaintiffs in Boston challenged Section 3 of the act, claiming it was discriminatory because federal Social Security, veterans and other benefits were denied to same-sex couples married in Massachusetts, where such unions are legal.

“The denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage,” the appeals judges said in an opinion yesterday, upholding the ruling of a lower court.

The panel is the first appellate court to have declared any part of the federal law unconstitutional, said Kenji Yoshino, a professor of constitutional law at New York University School of Law in Manhattan.

The court didn’t rule that any state had to change its definition of marriage, Yoshino said in a phone interview. “It just said that if a state allowed same-sex marriage, then the federal government should do what it’s traditionally done and respect whatever definition the state has adopted of marriage.”

The judges stayed the ruling pending an anticipated decision by the U.S. Supreme Court on this case or a similar case. The ruling applies to four New England states and Puerto Rico, which are covered by the circuit court’s jurisdiction.

‘Difficult’ Case

“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,” Judge Michael Boudin wrote in the decision. “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.’’

The law affects 1,000 or more ‘‘generic cross references’’ to marriage in federal laws, and could affect more than 100,000 couples, the judges said in yesterday’s opinion.

Supreme Court

The Defense of Marriage Act was signed into law by President Bill Clinton in 1996. Massachusetts became the first U.S. state to permit same-sex marriages in May 2004, after its highest court ruled that gays and lesbians had a constitutional right to wed.

After the U.S. lost its case in Massachusetts, the Obama administration decided that Section 3 of the act was unconstitutional and that it wouldn’t defend it in court. A bipartisan panel of the House of Representatives voted to intervene and defend the act.

The U.S. Supreme Court in October 2006 turned away a challenge to the law by two gay California men after an appeals court in San Francisco concluded that the couple lacked the legal right to challenge the law because they hadn’t shown they were injured by it.

A federal district judge in California in February found that Section 3 of the act is unconstitutional and violates the Fifth Amendment equal-protection rights of a federal court employee who was denied health insurance coverage for her wife that is available to other married judicial employees. That decision has been appealed.

‘Landmark Ruling’

The ‘‘landmark ruling makes clear once again that DOMA is a discriminatory law for which there is no justification,” Massachusetts Attorney General Martha Coakley said in a statement. “It is unconstitutional for the federal government to create a system of first- and second-class marriages, and it does harm to families in Massachusetts every day.”

The fact that the case was decided by two judges appointed by Republican presidents -- Boudin and Juan R. Torruella -- and one appointed by a Democratic president -- Sandra Lynch -- shows that the “tide is really turning on this issue,” Yoshino said.

The case has a “good shot” of reaching the Supreme Court before another case challenging California’s Proposition 8, a voter initiative that banned same-sex couples from marrying, Yoshino said.

An appeals court in San Francisco in a 2-1 decision in February said that voters couldn’t deprive gay couples of the right to marry, upholding a 2010 ruling by a federal judge that the initiative violated equal protection rights of gay and lesbian couples. Proponents of the law have asked a larger panel of judges at the California appellate court to review the ruling.

California Constitution

Proposition 8, which amended California’s constitution to say that marriage is only between one man and one woman, was approved by 52 percent of voters in 2008 after the California Supreme Court legalized gay marriage earlier that year.

No states would have to change their laws if the Boston case is affirmed by the Supreme Court, while a similar affirmation in the California case could force all states to legalize same-sex marriages, Yoshino said.

“If the Supreme Court grants review in that case, then there is the potential there for the Supreme Court to say there is a fundamental right to marry from which gay couples are being excluded and it could flip all of the states that don’t have same-sex marriage to require them to recognize same-sex marriage,” he said.

The defendants in the Boston case can either ask a larger panel of the appeals court to hear the appeal or petition directly to the Supreme Court to listen to arguments in the case, Yoshino said.

Legal Strategy

Paul Clement, a partner at Bancroft Pllc in Washington who defended the DOMA law for the bipartisan panel of the House of Representatives, said in a statement that “no decisions on legal strategy” have been made.

“But we have always been clear we expect this matter ultimately to be decided by the Supreme Court, and that has not changed,” Clement said.

Six states and the District of Columbia issue marriage licenses to same-sex couples, according to the Human Rights Campaign -- Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont.

The cases are Gill v. OPM, 10-2207 and 11-2214, and Commonwealth of Massachusetts v. U.S. Department of Health, 11-2204, U.S. Court of Appeals for the First Circuit (Boston).

To contact the reporters on this story: Don Jeffrey in New York at djeffrey1@bloomberg.net; Chris Dolmetsch in New York at cdolmetsch@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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