Appeals court turns back marriage act as unfair
By KATHARINE Q. SEELYE
and ETHAN BRONNER
The New York Times | June 01,2012
A federal appeals court ruled unanimously Thursday that the federal law declaring marriage to be a union solely between a man and a woman discriminates against married same-sex couples by denying them the same benefits afforded to heterosexual couples — a ruling that could set the stage for the Supreme Court to review the issue as early as next year.
The decision, from the 1st U.S. Circuit Court of Appeals in Boston, will have no immediate effect because the court stayed its ruling in anticipation of an appeal to the Supreme Court. Legal experts said the justices could agree as early as this fall to hear the case and arguments could come next spring, making it the first case involving the same-sex marriage law to be decided by the nation’s highest court.
While the case dealt narrowly with the question of federal benefits for same-sex couples — not with the legality of same-sex marriage itself — many scholars said it was a significant moment in civil rights.
“It is another illustration of the growing consensus of the judiciary about the unconstitutionality of discriminating against gays and lesbians in the realm of marriage,” said Geoffrey Stone, a professor of law at the University of Chicago.
Another case, from California, does test the broader constitutionality of same-sex marriage, and as it has percolated through the courts, some proponents have said they preferred that it be in the vanguard. But others have felt that the incremental approach used in the Massachusetts case — much like the one used by opponents of abortion rights — would be more effective in achieving the movement’s ultimate goals of full equality for gay and lesbian couples.
“I think this road for the Supreme Court has more upside and less risk for gay rights folks and for the court to intervene in this type of issue,” said Douglas NeJaime of Loyola Law School. “It is more limited with no fundamental right-to-marry question.”
Thursday’s ruling, by a three-judge panel, was the first time an appellate court had declared a section of the Defense of Marriage Act, known as DOMA, unconstitutional, although two federal judges in California have done the same. The 9th U.S. Circuit Court of Appeals is due to hear arguments there on the issue in several months.
Judge Michael Boudin of the Boston appellate court, who was appointed by President George H.W. Bush, wrote in Thursday’s decision of a concern over Congress’ “effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”
He concluded that “only the Supreme Court can finally decide this unique case.”
The court upheld a ruling from 2010 in which Judge Joseph L. Tauro of U.S. District Court in Boston found that the marriage law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not to others. The benefits, now granted only to heterosexual couples, range from the ability to file joint tax returns, which can reduce a couple’s tax liability, to the ability to collect Social Security survivors’ benefits.
Supporters of the law said they hoped the Supreme Court would reverse the appellate court’s decision.
“Society should protect and strengthen marriage, not undermine it,” said Dale Schowengerdt, counsel for the Alliance Defense Fund, a group of Christian lawyers.
“In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far,” he said in a statement. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”
The court did not address — nor was it asked to — whether states without same-sex marriage could be forced to recognize couples who were married in states where it is legal. The 1st Circuit covers Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
Supporters of the marriage law also seemed to believe that the Massachusetts case was better for their cause than the one from California, in which the 9th Circuit earlier this year struck down a ban there on same-sex marriage.
“This is a good development for defenders of the law,” said Gregory Katsas, a former Justice Department official who has defended the Defense of Marriage Act. For the Supreme Court to overturn it, he said, the justices would have to take the drastic step of striking down “a federal statute passed by overwhelming margins and signed by Bill Clinton.”
Watchers of the Supreme Court believe that the nine justices are divided 4-4 on the question of gay rights, with Justice Anthony M. Kennedy likely to be the deciding vote.
Kennedy has written two previous decisions that significantly advanced gay rights, and the consensus in the legal community is that he will probably be supportive again in this case if the justices agree to take it in the fall.
The Massachusetts decision relied heavily on his two rulings and seemed to some experts a clear attempt to appeal to him on his own terms.
“I could see Kennedy taking this one because it will allow him to write a narrower decision rather than a more sweeping defense of gay rights,” said NeJaime of Loyola.
He and others said that the justices do not like to get too far ahead of society on such questions, and many states ban same-sex marriage.
The Defense of Marriage Act was enacted in 1996 and signed into law by Clinton. It stemmed from a fear in Congress in the early 1990s that Hawaii might allow same-sex marriage.
In a sign of how rapidly society has changed, President Barack Obama campaigned against the law in 2008, said in 2011 that his administration would not defend it and last month declared publicly that he supported the right of same-sex couples to marry.
That left the defense of the law somewhat orphaned, until the Republican majority in the House appointed a group called the Bipartisan Legal Advisory Group to defend it. The group has argued that Congress wanted to preserve the law because it provided a traditional and uniform definition of marriage, helping the federal government to distribute federal benefits.
But Jennifer C. Pizer, of the University of California, Los Angeles, said that the court’s ruling Thursday meant that holding a traditional view of marriage does not allow someone to discriminate against gay couples.
“Many people of good will have grown up with the belief that homosexuality is dangerous,” she said. “The court is saying that the fact that certain congressmen and justices may have a fondness for the 1950s doesn’t change the fact that under the rule of law everyone has to be treated equally.”