Thursday, July 8, 2010

Federal Court Invalidates Section 3 of DOMA. Is Reversal Likely?

In two separate opinions, a federal district judge in Massachusetts has ruled that section 3 of the Defense of Marriage Act violates the Constitution. Section 3 of DOMA excludes same-sex married couples from over 1,100 federal benefits (including social security survivor benefits and a host of other programs).

In one case, the judge held that Section 3 violated the equal protection rights of same-sex married couples. The judge ruled that the discriminatory policy lacked a rational basis.

The court rejected the government's asserted reasons for discriminating against same-sex couples. The government argued that DOMA encourages responsible procreation and child-bearing, defends and nurtures the institution of traditional heterosexual marriage, defends traditional notions of morality, and preserves scarce resources.

The court found these interests insufficient to warrant discrimination against same-sex married couples. The court also cited the lengthy record of overt homophobia among members of Congress who supported the legislation.

The second opinion held that Section 3 violated the 10th Amendment because it intrudes upon the ability of states to define marriage and because it conditions the receipt of federal benefits upon states depriving gays and lesbians of equal protection. The State of Massachusetts brought this lawsuit.

Final Take
Unless an appeals court reverses these rulings, they will benefit same-sex married couples. The decisions, however, do not provide relief for most gays and lesbians who cannot legally marry.

Also, it is quite possible that an appeals court might reverse one or both of the rulings. The 10th Amendment ruling, in particular, seems quite vulnerable to reversal in my professional opinion. It seems to rest on a more constrained view of federal power than current Supreme Court doctrine mandates. Professor Jack Balkin agrees (arguing that the court's 10th Amendment arguments "prove entirely too much").


Hippi Chicki Niki said...

It makes me happy anyway to see SOMEONE in the legal community sticking up for the rights of LGBTs.

Hippi Chicki Niki said...

Darren Lenard Hutchinson said...

Thanks for the link. As I stated in the article, I think the 10th Amendment argument is far fetched. It actually comes across as a Tea Party ruling. Some liberals might be proud of this, but it can only harm liberal causes in the future. The equal protection argument is more solid in my opinion (but that one is even subject to criticism).

Hippi Chicki Niki said...

I wondered if the points in the newsy video might have hit upon the judge's actual reason for the 10th amendment argument. I wondered if their sources were right in speculating that the reason it sounds like a Tea Party argument is because it is meant to point out the hypocrisy in the conservative viewpoint in supporting federal legislation that hurts minority groups with which they don't identify (like DOMA) but being very much in favor of states' rights as an argument against any federal legislation that helps those people they see as different from themselves (eg. health care reform). It may not be, I haven't read the decision and I hate to talk about things on which I am not informed. I just wondered what you thought of that point of view.

I do appreciate your point about it harming liberal causes in the future, even potentially harming this particular cause. Some activists have criticized the state by state approach and have felt that the movement should approach this from a federal level (which Americans for Equal Rights has started doing with the Prop 8 case in Cali). Now, if Congress were to try to make bans on gay marriage illegal or do something else to protect equal marriage rights, the 10th amendment argument would, like you said, harm the liberal/progressive cause. You make a very, very, salient point that others seem to be overlooking.

Hippi Chicki Niki said...

A NYT opinion article that wholeheartedly agrees with your analysis:

Darren Lenard Hutchinson said...

Thanks for the link, Niki.

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