Thread: Defense of Marriage Act unconstitutional, another federal court rules

Defense of Marriage Act unconstitutional, another federal court rules

By Howard Mintz
San Jose Mercurymercurynews.com
Posted: 05/31/2012 11:50:01 AM PDT
May 31, 2012 6:51 PM GMTUpdated: 05/31/2012 11:50:02 AM PDT

From California to Boston, the legal storm over gay marriage is moving swiftly and inexorably toward the U.S. Supreme Court.

A Boston-based federal appeals court on Thursday put yet another legal dent in the federal government's ban on same-sex marriage rights, saying the 1996 Defense of Marriage Act is unconstitutional because it denies equal benefits to gay and lesbian couples.

The unanimous three-judge decision was the first federal appeals court ruling invalidating federal same-sex marriage restrictions and could wind up as the case that pushes the contentious gay marriage question to the Supreme Court sometime this year.

With legal challenges to DOMA and state laws such as California's Proposition 8 unfolding across the nation, the Boston court made it clear that the Supreme Court must weigh in.

"Only the Supreme Court can finally decide this unique case," the 1st U.S. Circuit Court of Appeals wrote.

The ruling marks the latest blow in the courts to state and federal bans on same-sex marriage, and represents part of a fast-moving puzzle of cases that appears destined to force the Supreme Court to tackle the argument that gay and lesbian couples should have the same legal right to marry as heterosexual couples.

There are at least two California cases that are moving in a similar direction, and might reach the Supreme Court's docket as quickly as Thursday's decision out of the Massachussetts federal courts.

The 9th U.S. Circuit Court of Appeals last year struck down Proposition 8, California's voter-approved ban on same-sex marriage, and is now weighing a request to reconsider that decision with an 11-judge panel. If the 9th Circuit declines to rehear the case, the Proposition 8 showdown would likely land in the Supreme Court almost as swiftly as the Boston DOMA case, giving the justices an opportunity to consider at the same time the constitutionality of both state and federal bans on same-sex marriage.

In addition, the 9th Circuit is scheduled to hear arguments in September in another DOMA challenge brought on behalf of a 9th Circuit staff attorney, Karen Golinski, who sued because the government denied benefits to her spouse after they married before Proposition 8 was approved in 2008. A San Francisco federal judge in her case declared the law unconstitutional earlier this year, prompting an appeal to the 9th Circuit.

The Golinski case marked the first time the Obama administration abandoned the legal defense of DOMA, arguing that it is unconstitutional. A group of House Republicans, led by Speaker John Boehner, has intervened in both the 9th Circuit and 1st Circuit to defend the federal law and is expected to appeal the Boston ruling to the Supreme Court. The group also could ask the entire 1st Circuit to rehear the case before proceeding to the Supreme Court, which would delay the outcome.

In a statement, the Alliance Defense Fund, another conservative group defending state and federal gay marriage bans, said, "We trust the U.S. Supreme Court will reverse this erroneous decision."

Legal experts say the Supreme Court may be under increasing pressure now to settle the law as more judges in the lower courts are asked to decide the gay marriage issue. Just last week, Oakland U.S. District Judge Claudia Wilken found DOMA unconstitutional in another case involving California employees denied federal health benefits, a ruling that also is expected to wind up in the 9th Circuit at some point this year.

Vikram Amar, a UC Davis law professor, said the Supreme Court may be more inclined to consider a DOMA case before Proposition 8, which raises much broader questions about each state's ability to define same-sex marriage rights.

"The Supreme Court has a lot of flexibility about which cases it wants to take first, but I think it will be hard for to them to not take this DOMA case," he said. "Most people think the DOMA cases are likely to get there before the Proposition 8 case."

In Thursday's ruling, the 1st Circuit said the 1996 law that defines marriage as a union between a man and a woman discriminates against gay couples because it doesn't give them the same rights and privileges as heterosexual couples. The three-judge panel was made up of two Republican appointees and one Democrat.

Legal experts were quick to point out that the court took a fairly narrow approach, finding that Congress did not have the authority to trample on the rights of states such as Massachussetts to legalize same-sex marriage and confer equal benefits to gay and lesbian couples. The 9th Circuit case may pose broader constitutional issues because for now it involves a state, California, that outlaws same-sex nuptials.

The Boston court didn't rule on the law's other politically combustible provision, which said states without same-sex marriage cannot be forced to recognize gay unions performed in states where it's legal. It also was not asked to address whether gay couples have a constitutional right to marry.

The law was passed at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the federal law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The 1st Circuit put its ruling on hold until the U.S. Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by DOMA until the high court rules.

The ruling applies only to states within the circuit, including Massachusetts, Rhode Island, Maine, New Hampshire and Puerto Rico. A DOMA decision by the 9th Circuit would apply to California and eight other western states. Only the Supreme Court has the final say in deciding whether a law passed by Congress is unconstitutional.

During arguments before the court last month, a lawyer for gay married couples said the law amounts to "across-the-board disrespect." The couples argued that the power to define and regulate marriage had been left to the states for more than 200 years before Congress passed DOMA.

An attorney defending the law argued that Congress had a rational basis for passing it in 1996, when opponents worried that states would be forced to recognize gay marriages performed elsewhere. The group said Congress wanted to preserve a traditional and uniform definition of marriage and has the power to define terms used to federal statutes to distribute federal benefits.

Since DOMA was passed in 1996, many states have instituted their own bans on gay marriage, while eight states have approved it, including Massachusetts, Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington state and the District of Columbia. Maryland and Washington's laws are not yet in effect and may be subject to referendums.

Howard Mintz covers legal affairs. Contact him at 408-286-0236

http://www.mercurynews.com/samesexma...al-court-rules

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