Over the past decade, movement on marriage equality has been in two opposing directions, with some states passing laws to allow same-sex marriage and others passing laws to prohibit such unions. In addition to the legislative strategy, some advocates have pursued a litigation strategy, which has paid increasing dividends as several federal courts have recently ruled that efforts to deny same-sex couples the right to marry are unconstitutional.
In February, the Ninth Circuit struck down California’s Prop 8 (the voter-enacted ban on same-sex marriage) and just a few days ago declined to rehear the case en banc, while at the end of May, the First Circuit ruled DOMA’s section 3 (defining marriage as between one man and one woman) unconstitutional. The Supreme Court is likely to hear at least one of these cases during the term that begins in October, adding same-sex marriage to the long list of political hot button issues on its docket.
DOMA’s two operative paragraphs make it an unusually short yet damaging piece of legislation. The law allows the federal government to deny economic and other benefits to lawfully married same-sex couples and threatens states that recognize same-sex marriage (like Massachusetts) with cuts to programs like Medicaid. DOMA’s Section 3 operates to effectively deny married same-sex couples the rights and benefits that apply to heterosexual couples.
With its unanimous ruling, the First Circuit became the first federal appellate court to rule that DOMA is unconstitutional. Several federal district courts, including California’s Northern District and the Southern District of New York, have also declared DOMA unconstitutional. (The Ninth Circuit will hear oral arguments in yet another DOMA challenge during the week of September 10th).
In its May 31 opinion, the First Circuit looked to the harmful effects of the legislation on states and individual citizens when deciding whether those effects served to advance Congress’ goal of protecting heterosexual marriage. However, the three-judge panel was not as ambitious as the Northern District of California when reviewing DOMA’s constitutionality, calling for “closer than usual” review of its discriminatory effects on same-sex couples rather than applying “heightened scrutiny,” as the court in California did.
It is all but assumed that the losing party in the First Circuit will appeal to the Supreme Court. This is such a foregone conclusion that the First Circuit stayed its decision pending appeal, and seemed to be directing its reasoning toward the “swing justice” – Justice Anthony Kennedy. The unanimous opinion relies heavily on Justice Kennedy’s opinions in Lawrence v. Texas and Romer v. Evans. In Lawrence – involving a Texas anti-sodomy law – the Court warned that moral disapproval alone could not justify criminalizing specific behavior, while Romer stands for the proposition that a state cannot deny an entire class of persons the ability to seek equal protection under the law. It is well-known that lawyers and advocates go to great lengths to sway his pivotal vote, and these are cases in which his vote would almost certainly be pivotal.
When these cases reach the Supreme Court, the goals of DOMA and Prop 8 will be examined in terms of those laws’ effects. While DOMA supporters claim that the law saves the federal government money by denying certain benefits to same-sex couples, the First Circuit said that recent studies suggest otherwise. Furthermore, there is no empirical evidence to support the claim that legalizing same-sex marriage discourages heterosexual marriage. In its relatively modest ruling, the First Circuit said that denying federal benefits to same-sex couples lawfully married in Massachusetts “has not been adequately supported by any permissible federal interest.”
In its opinion, the First Circuit reiterated the status of same-sex couples as a disadvantaged and politically unpopular group. The First Circuit’s ruling illustrates an emerging consensus among courts that the rights of same-sex couples should not be denied without at least some question as to the discriminatory results of laws like DOMA or Prop 8. Even without the level of skepticism in the Northern District of California opinion, the First Circuit still chose to review DOMA under a higher than usual standard.
If the Court hears either or both of these cases, it may decide to rule on a question as narrow as whether the federal government and all states must recognize same-sex marriages performed lawfully under the various state laws, or as broad as declaring any state ban on same-sex marriage unconstitutional. The Court will have a historic opportunity to move the country forward on marriage equality, or to erase the progress that has been made over the last several years.