Oh, And DOMA Ruled Unconstitutional

By the United States Court of Appeals for the First District. Details here; actual ruling here. And off it will go to the Supreme Court at some point in the not too far future. My lawyer friends tell me it’s very well argued and positively backed to the gills with a half century worth of precedent, which is a nice virtue for a ruling to have, especially if one is in philosophical agreement with it.

This is a slightly different issue than same-sex marriage, but it seems to me that if the Supreme Court agrees DOMA is unconstitutional then I don’t see how the constitutionality of banning same-sex marriage is sustainable in any sense. Which bothers me not in the slightest, of course.

56 Comments on “Oh, And DOMA Ruled Unconstitutional”

  1. And of course the first thing that pops into my head is Bill Murray in Ghostbusters, railing about “dogs and cats, living together…”

    Which bothers me not in the least. I hope DOMA gets permanently sent to the dustbin of history.

  2. What I’m finding interesting is that this is a case about state’s rights vs. federal rights. Even if DOMA is struck down, that won’t necessarily pave the way to force states to legalize it — based on the same state’s right issues. It’s going to be an interesting few years, even more so for those of us who can cross state lines and change our marital status.

  3. Stephen A. Watkins – A writer of Fantasy and Speculative Fiction living in Atlanta, Georgia. He's been writing since grade-school, and he's never given up the dream. He continues to juggle his dreams of establishing his writing career, the demands of family life, and working full time. He chronicles the challenges of balancing all these demands on his blog, The Undiscovered Author.
    Stephen A. Watkins

    Indeed… if the Supreme Court upholds this (although… isn’t that a long shot with this particular Supreme Court? They have a habit of spitting on things with a century worth of precedent to push through their ideological agenda…); anyway, if the Supreme Court upholds this, I can’t see how that wouldn’t invalidate various State Constitutional Amendments banning Gay Marriage. Given the Constitutional requirements for full faith and credit, a gay couple could then reasonably get married in any gay marriage-friendly state and then settle in a non-gay-marriage-friendly state and said latter state would by law have to give credit to that marriage, which effectively knee-caps any anti-gay-marriage law in those states.

  4. Stephen A. Watkins:

    Well, yes — and that ultimately does argue for the unconstitutionality of the bans in the long run, in my mind. However, as a practical matter, I’m fine with state bans remaining but being utterly toothless. I’m sure New York, et al would also be perfectly happy to have the economic boost that comes from same-sex couple coming to get married in their states rather than their home states (and THAT, as much as anything, will get the bans off the books — no state wedding industry likes losing business).

  5. “No state wedding industry likes losing business.”

    After a second glance at that article, I’m more than a little surprised that Nevada hasn’t yet seen fit to support gay marriage. How many thousands of couples get married in Vegas every year?

  6. If this ruling is upheld by the Supreme Court it won’t affect state bans, at least in the short term. Part of the language in the judges opinions talks about state bans being “okay”, Kind of like President Obama supporting gay marriage, but it’s okay for states to ban it.

    It’s a nice step in the right direction though.

  7. Forgive me here, I’m not from the US, I need to ask; if DOMA is ruled unconstitutional, does this not mean that states that ban gay-marriage will be forced to recognise same-sex marriages performed in other states? I know the current setup basically nullifies out of state same-sex marriages as soon as they cross the state border (which always seemed odd to me, one part of the country not recognising marriages from another part of the same country), and this seems a somewhat untenable position (morally at least, legal and moral don’t always match up after all).

  8. The states argument isn’t a way for the lower courts or Obama to sit on the fence, it’s (sadly) how things work in US law. Marriage is almost entirely the domain of states, and can only be overruled by a Supreme Court decision (e.g. Loving v Virginia) or a US Constitutional amendment. The main point of Obama not defending DOMA in the executive branch was to convince the courts to apply “heightened scrutiny” to the law, which would make it harder to defend based on decisions like the aforementioned Loving as well as Lawrence v Texas. Unfortunately, this particular court declined to do so, and furthermore did not say there was evidence that Congress was being antagonistic in making the law; also, the decision applies only to the federal benefits (i.e. taxes, health care, and pensions) section of the law. It’s a step in the right direction, but kinda meh.

    Presumably, one or another of the decisions will apply heightened scrutiny, but even then it’s not a sure thing, as there’s essentially four justices who will oppose it and a fifth who’s been getting a good deal more conservative over the years.

  9. Technically, a state with laws against consanguineous cousin marriage is not forced to recognize marriages from states who’re OK with that. So yes, state constitutional amendments defining marriage *could* prohibit SSMs from say NY or MA or CA from being recognized.

    But there is an argument from the full faith and credit clause that might prohibit that. It’s just not made it through the courts yet.

  10. Crypticmirror, the decision actually only invalidates section 3 of DOMA, which states that the Federal Government doesn’t recognize same-sex marriages. State-to-state recognition is section 2.

  11. This could lead to a situation where a same-sex partner would be recognized at the federal level for things such as filing a joint tax return and being a spouse beneficiary on an IRA, but the tax treatment at the state level could be different. It may be a while before the Supreme Court rules, and any ruling may be narrow.

  12. I don’t see a lot of mention of this fact but it’s important – the judges kept the stay in place pending appeal. So while this is a nice and welcomed win it sadly is not going to help the current litigants. They’re still left hanging till an appeal is not filed within a certain period (unlikely) or appeal is granted or denied.

    At this point, with similar but not identical decisions from both the 1st and 9th, its almost a certainty that the Supremes are going to have to pick this up. It’s been a while since I got my primer on how the conflict-of-laws function of the Supreme Court works but I don’t think anyone really wants to just leave us with several circuit decisions. Opponents have big sections of the country with one set of rules and none in others, though lower courts without guidance from the Supremes (as I recall) tend to honor other circuits if there’s not a conflict between them. It’s not as pressing a need as it would be if you had differing opinions (like the state of the Affordable Care Act where some circuits defended it and others didn’t) but it’s still important.

    It’s a shame the decision isn’t out of the 4th which would cover DC/MD/VA; the disservice we do to our gay federal employees in leaving them out in the cold is atrocious. I’d love for there to be a big display of folks out there putting a face on the people whose lives are left in limbo as this slogs on.

  13. Correction: it’s actually the United States Court of Appeals for the First CIRCUIT, not district.

    It’s worth noting that none of the judges are seen as particularly liberal, and all of them are quite well respected across the country – particularly the author, Judge Boudin.

  14. The states-rights justification in this judgement feels really weak. LGBT rights really should have the whole strict-scrutiny, 15th-ammendment-therefore-applies-to-states thing. This ruling, by denying even a rational basis test for laws discriminating against LGBT folks, implicitly endorses something like a state law allowing employment discrimination against gays. BUT, given the current makeup of the Supreme Court, I’d guess this is about the best we can hope for from the federal judiciary on the issue, and it certainly does feel like a step forward.

  15. Oops, after reading the decision, I am reminded that when I said “rational basis” above, I was thinking of “intermediate scrutiny,” and left somewhat less worried about the overall implications of denying this to laws targeting the LGBT community, given the ruling’s good point that Lawrence v. Texas and Romer v. Evans don’t require it. I’m still disappointed in the ruling in its glossing-over of the comparison to Loving v. Virginia, which it cites as an example of federal *deference* to state laws regarding marriage, which on its face seems backwards.

  16. Dogs and cats living together! Mass hysteria!

    Sorry. Was channeling Tom Brinkman, the local obstructionist who is against even saying no.

    Which means, as often as he says it, he must be wallowing in self-loathing.

  17. “The states-rights justification in this judgement feels really weak. LGBT rights really should have the whole strict-scrutiny, 15th-ammendment-therefore-applies-to-states thing.”

    I do believe this ruling punches the hole for a future suit to push the 14th Amendment gambit through. BTW, 14 is the one that forces the states to uphold the Bill of Rights. 15 says you can’t own slaves.

  18. I could be wrong, but hasn’t DOMA already been heard by the Supreme Court and didn’t they uphold it? Maybe I’m thinking of DADT.

  19. Given that the 9th ruled against DOMA, do you think that Newt Gingrich might turn his attention to trying to convince Mitt to, upon ascending the throne, dissolve the Imperal Senate and sweep away the last vestiges of the Old Rep – oops, I mean impeach the judges of the circuit and invalidate their rulings on the grounds of ” liberalness “?

  20. You may call me a Masshole from taxachusettes (why not – we call ourselves that – sometimes) but this is something makes me happy very glad to be here.

    Lets hope the Supremes agree.

  21. What’s the point of me getting married if anyone can do it with anyone they want? I’m so glad that the Republicans in my state are going to try to preserve my special rights by giving us the chance to vote it into our state constitution.

  22. @David A. W.:

    The “Taxachusetts” nickname may (or may not) have meant something when it was first coined, but currently the combined state and local tax burden is lower here in MA than the national average.

  23. Bruce, the point of you getting married was presumably to become a married couple with your chosen spouse. Is this something you wouldn’t have done if those other people were entitled to marry, because then it would have been pointless? I feel sorry for your spouse if it seems suddenly pointless to you to have married her (I’m guessing it’s “her”).

  24. I’m going to try a text-based meme. [SQUINTING FRY] Not sure if trolling or sarcastic.

    @Bruce – The point of getting married is that you love the other person and want to have that love recognized by the community. If any same sex marriage in San Francisco, or even next door, is affecting your marriage, then you have bigger problems.

    If you are really being sarcastic, then just ignore me.

  25. So, John, your marriage still feeling secure? I know you check that with Krissy every time one of these gay-marriage things comes along to threaten the sanctity and all that.

  26. The “special rights” thing makes me think Bruce is just being sarcastic, it’s just not something that comes across well in the online commenting medium. Then again, it never has.

  27. @Stephen A. Watkins: As Marc Moskowitz said, the ruling isn’t actually to overturn all of DOMA, just the section that forbids any federal recognition of same-sex marriages.

    There’s still a section in there that explicitly gives states permission not to recognize out-of-state same-sex marriages, if they don’t want to. It could perhaps be argued that that’s unconstitutional under the full-faith-and-credit clause, but that’s not the argument being made here.

    I have a very hard time believing that this Supreme Court would ever rule that state bans on same-sex marriage are unconstitutional. There’s an outside chance that they just might overturn California Prop. 8, but if they did, it’d probably be on the basis of something like the opinion of the Ninth Circuit’s panel, a much narrower argument having to do with the specific circumstances of California, in which a ban was enacted after the state had already started issuing legal marriage licenses. The other bans would remain in place.

  28. @Jesse – I wasn’t sure how to take Bruce’s comment. He echoed the worst argument against same sex marriage perfectly, but I can’t tell if it had a Stephen Colbert delivery or a Pat Robertson delivery.

  29. I have never understood how DOMA was going to defend my marriage. As far as I can tell, it’s never been diminished by anyone publicly declaring their love and commitment to someone who is not my spouse. I doubt that any heterosexual couples considering marriage would choose not to on the basis that homosexual couples could also get married.

    Can someone explain to me why black Christians are one of the biggest groups opposing gay marriage? There’s a predominately black church in St. Paul that’s about to close because 2/3rds the congregation left and another church that was renting space chose to move after he voted in support of gay marriage at a national assembly (it would have passed even without his vote), and now they can’t pay off a loan.

  30. That should read “after the pastor voted in support of gay marriage at a United Church of Christ national assembly.”

  31. Can someone explain to me why black Christians are one of the biggest groups opposing gay marriage?

    I think the Christian part is the most relevant part there.

  32. @gwangung: Since many national Christian convocations, including the United Church of Christ, Presbyterians, and at least one Lutheran synod have voted to support gay marriage, it’s clear that Christianity is not the only factor. I can’t say for sure that it’s true, but the mainstream media seems to be reporting that black Protestant churches and congregations oppose gay marriage as strongly as the Catholic and Mormon hierarchies.

  33. One thing you can count on with the current Supreme Court is that precedent has no part to play in their 5-4 decisions. So, while it is nice that the plaintiffs did an excellent job of providing precedent, it does not mean it will affect the outcome in the high court.

    But it appears as if the idea of marriage equity has reached critical mass with the population. Once it stops being a tool whos only purpose is to drive conservative voters to the polls garbage like DOMA will be every bit the relic anti-miscegenation laws are today.

  34. I’ve never understood the “logic” behind the threat of homosexual marriage. Reminds me of the underwear gnomes.

    1) Gays get married
    2) ?????
    3) Heterosexual marriage destroyed

  35. @Bruce: The UCC, the non-conservative branch of the Presbyterians, the ELCA, etc… are all what we usually refer to as the “mainline” denominations. These churches have been sliding slowly towards oblivion since the 1960’s and in no way represent the vast majority of Christians in the U.S. So I unfortunately agree with gwangung. Being a self-identified Christian is very strong correlated with way-out-there social conservatism, anti-LGBT bigotry, etc…

    Being an Episcopalian myself, I dearly wish this wasn’t true. But if wishes were horses…

  36. @Bruce, I think the “Black Christian opposition” is a smokescreen, and one the media has fallen for because it fits neatly into their pre-existing frames. NOM was outed recently as deliberately intending to pit minorities against each other on this issue. But the facts just don’t bear out. Pastor in North Carolina who made the news when he videoed himself shooting an anti-Amendment 1 sign? White. North Carolina pastor who thinks gays and lesbians should be locked behind an electrified fence until they “die out”? White. Kansas pastor who said in a sermon that the government should kill gay people? White.

    In no state where these amendments have passed do Black voters make up enough of a percentage to have single-handedly swung the vote one way or the other. In fact, here in NC the amendment failed in a big way in several counties with a higher percentage of Black voters than the state average. The NAACP just came out in favor of marriage equality.

    It’s not massive voting blocs of Blacks voting in this bigotry. It’s white conservatives.

  37. What Wrenlet said. Black voters have been slower to support marriage equality than white voters, but that is changing rapidly. State NAACPs opposed Prop 8 in California and Amendment 1 in North Carolina before the national NAACP spoke up.

    Bruce, conservative Christianity is not the only factor, but it is certainly a factor, as is education; when you adjust for those you black and white voters are about the same.

    Again, it is changing. It’s also a sign that, as we learned the hard way after Prop 8, it’s not enough for a predominantly white urban LGBT activist community to stick to the comfortable task of talking to other white urban voters.

    I’m sure I’ll have thoughts on the opinion once I’ve read it, but I hate to say more than “I of course like the result” without actually having time to read it carefully. Otherwise one risks turning into the sort of person who blathers about “activist judges” and “should have been left to the legislature”, and embarrassing one’s long-ago Civics teachers for their failure.

  38. Bruce: Can someone explain to me why black Christians are one of the biggest groups opposing gay marriage?

    The implication built into your question is that only straight, white, men can be bigots, and it becomes inexplicable if anyone else shows bigotted behavior.

    Can anyone explain why anyone is a bigot? Are there any objectively measurable benefits to opposing gay marriage? No. So then why would someone oppose gay marriage?

    You’re trying to make bigots make sense, and they don’t. They’re just bigots. And bigots can exist in any race, color, or orientation.

    mythago: Black voters have been slower to support marriage equality than white voters

    That’s like saying the South was just slower to give up slavery than the North was, rather than calling a bigot “bigot”.

  39. I’ve never understood the “logic” behind the threat of homosexual marriage.

    There is no chain of logic here. I think it’s part of a more general emotional conservatism. If you’re an aging cultural conservative, you see the world changing in all sorts of ways that you were taught were Not Done: women having paying careers and putting off marriage, divorce and single parenthood losing their stigma, legal abortion, people talking openly about pregnancy and contraceptives, open homosexuality, people swearing and wearing weird-looking pants on the TV. In your mind, they’re all connected.

    And if you furthermore live in a low-income rural area of a deep-red state, like as not, you also see the place you live disintegrating in front of your eyes while all this is going on: people getting poorer, all kinds of social pathologies getting worse, kids trying to get the heck out of there as soon as they can. And in your mind, that’s connected too. it’s all very scary and hard to understand, and this last bit is genuinely sad.

    Somebody tells you that in far-off parts of the country, men are getting married to other men, and it just seems like another nail in the coffin of the old world you knew and thought you understood. You may well not pause to try to understand the actual root causes of the problems afflicting your society, or wonder whether there’s any logical connection between these things that bother you. It’s all too overwhelming.

  40. John, that was exactly the point Scalia made in his dissent in Lawrence v. Texas:

    If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

  41. Greg, I don’t think that was the implication of Bruce’s question. The question was about why more individuals in that particular group seem to have this particular brand of bigotry that is the case for other groups (white Christians, black Muslims, Americans as a whole, or whoever they’ve been compared with). IF it is the case (and not just received media wisdom), it is an interesting question. One answer might be found in population proportions. Being a smaller proportion of the whole population of Christians, for instance, it MIGHT be that the attitudes of black Christians are more homogeneous than the attitudes of white Christians.

  42. @ bearpaw May 31, 2012 at 9:46 pm

    I know that – and you know that – but they (being anyone not from here, or not here recently) don’t!


  43. Jeff: I’ve never understood the “logic” behind the threat of homosexual marriage.

    You put “logic” in scare quotes because you knew it wasn’t logical, which answered your own question: Bigotry isn’t logical.

    Reminds me of the underwear gnomes.

    Is that one of the Travelocity commercials? ;)

    Matt: you were taught were Not Done: women having paying careers and putting off marriage, divorce and single parenthood losing their stigma, legal abortion, people talking openly about pregnancy and contraceptives, open homosexuality, people swearing and wearing weird-looking pants on the TV. In your mind, they’re all connected.

    That last bit is the main cause of bigotry: connecting things that aren’t connected. The logical fallacies this creates include non causa pro causa, hasty generalizations, red herrings, among others. But they all go back to somebody making a connection that doesn’t exist in the real world, like “Gay marriage will destroy the planet”. Or, on the flip side, refusing to connect things that really are connected in the real world, and becoming the idiot who demands that you “prove” global warming, yet no matter what evidence you give them showing the connection, they will insist the connection does not exist.

    All of which is sourced by your first sentence. “you were not taught”. Fundamentally, the problem is people who put dogma over real world data.

    Or, more accurately, the problem is people who have an internal worldview that doesn’t match the real world but is impervious to real world input. They were taught something when they were a kid, it takes hold like burning an ROM, and nothing can ever change it again.

  44. The question was about why more individuals in that particular group seem to have this particular brand of bigotry that is the case for other groups (white Christians, black Muslims, Americans as a whole, or whoever they’ve been compared with). IF it is the case (and not just received media wisdom), it is an interesting question.

    If it were, it would be. But in fact it’s not the case. Anti-gay sentiment among black Americans is comparable to that among white Americans who attend church with similar frequency. Gay-friendly churches like the UCC are still the exception, and exceptions are easier to see in a larger population.

    In addition, attitudes among black Americans seem to be changing rapidly in a favorable direction, much as they are with everyone else.

    I think much of the media attention to Blacks vs. Gays is the result of one bad and overinterpreted CNN statistic seemingly indicating that black turnout put CA Proposition 8 over the top in 2008. But a key player there was the LDS church, not the blackest organization around.

  45. Thanks, Matt. I think my point was more that just saying “a bigot is a bigot” doesn’t answer such questions. Maybe Greg doesn’t find any worth in exploring whether/why people in some groups tend to have anti-gay attitudes and people in other groups tend not to, in which case the whole discussion is presumably of no interest to him. I think it is worth exploring. Why is this attitude so strong in the LDS church, for instance? Not that I expect you to have the answer, but one method for combating bigotry is looking at people’s beliefs and finding out whether there is any common ground to build upon in an attempt to gradually change people’s attitudes. It’s my belief that the more people are aware that folks they know (offspring, siblings, parents, neighbors, co-workers, the guy who owns the hardware store, the vet they’ve taken their cat to for years, their boss, etc.) are gay, the less they see “gay” as Other and the more they’re open to seeing gay people as like themselves and deserving of equal treatment under the law. Again, common ground is an important starting place. “A bigot is a bigot” doesn’t do anything toward improving the situation. (Not that you said any such thing, obviously. This goes back more to Greg’s point.)

    I’m sure that once upon a time, my mother thought that homosexuality was wrong and a sin. She didn’t know any gay people (that she knew of), and she got her ideas from her culture, as most of us do. Culture changed, she’s an intelligent, well-read, and thoughtful woman, she no longer believes that it’s wrong or a sin. She’s still uncomfortable with the idea of homosexuality, I sense (but she’s 89, and comfort levels change slowly), and she thinks that while gay people should be entitled to civil unions, she hasn’t been able to take the next step and accept same-sex marriage. But she’s come a long way in the last ten years, as have a great many Americans. Give her five more years, I bet she will. If I were to have written her off as “just is a bigot” at any point instead of expressing my point of view in a reasonable, low-key way when appropriate, how would that help anybody? Instead, we talk about the sacrament of marriage (she’s Catholic) versus the state licensing of marriage, and she gets a little closer. We posit that any two adults should be able to form a civil union (as long as both are legally free to do so) and have the state benefits and responsibilities, that each church should be able to make its own rules about the religious ceremony now referred to as marriage, and that church and state involvement in defining marriage should be disconnected, for heteros as well as everyone else. She can go along with that. I personally don’t have a problem with plural marriages among consenting adults, but I haven’t tried to go that far in talking to Mom.

    Matt, I liked your thoughtful post about “logic” too. Very well expressed.

  46. BW: Maybe Greg doesn’t find any worth in exploring whether/why people in some groups tend to have anti-gay attitudes

    It’s not possible to ask “Why is this person anti-gay?” until you first answer the question as to whether the person is anti-gay. And if they are antigay, then, hey, guess what? They’re a bigot!

    she hasn’t been able to take the next step and accept same-sex marriage

    Are you saying she holds this position yet she is not a bigot?

  47. BW, I’m not following the argument that you can acknowledge someone is a bigot, or you can try to change their way of thinking, but you can’t do both at the same time.

  48. Liberal Dan – New Orleans, La – Liberal Dan Radio, Talk From The Left, That's Right, is a podcast that airs Wednesdays at 8pm central.
    Liberal Dan

    I like that DOMA was ruled unconstitutional, as it is.

    What I do not like is the logic used in the ruling. The reason given was that the Federal Government doesn’t have the authority to come in and change the state definition of marriage.

    I say nay nay. The Federal Government ABSOLUTELY has the authority to come in and change the state definition of marriage IF that state definition of marriage violates the Constitution.

    Even if the court didn’t want to rule on the constitutionality of all marriage bans, they could have reached a different conclusion to reach the same results. They could have said, for example, that by not providing benefits to same sex couples who are married in a state that allows for marriage between people of the same gender that it was a violation of the equal protection clause of the Constitution. That way, you get the same end result of overturning DOMA without creating a legal precedent that states can define marriage as they wish without government interference.

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