Good bye DOMA

On the other hand!

A  federal appeals court has ruled that the Defense of Marriage Act is unconstitutional because it denies equal rights for legally married same-sex couples. Booyah!

Now it will go to the Supreme Court, which will overrule the appeals court. Or not  – I say those things out of settled pessimism about this Supreme Court, but then Rieux comes along to explain why actually the Supremes are quite unlikely to overturn.

Anyway in the meantime – DOMA has been thrown out. Very good.


  1. M Groesbeck says

    The best we can expect from the current SCOTUS is probably a resurrection of “separate but equal”, complete with “anything that remotely looks like a gesture in the direction of equality counts”.

  2. Jeff D says

    The First Circuit Appeals Court’s memorandum opinion and order is here:

    I (unfortunately) have confidence in the ability of the conservative majority on our Supreme Court to find a way to reverse the Court of Appeals (The art of lawyering, and making judicial decisions, frequently consists of finding an indirect way of doing what one wants to do but cannot do directly).

    But it will be fairly difficult for the Supremes to find a cogent way to reverse the Appeals Court here. This latest ruling does not validate same-sex marriage, or argue that states cannot prohibit it. Dozens of federal court decisions, many by the Supreme Court, establish the principle that property interests and many human relations such as “marriage” or other contracts are defined by state law, not federal law. DOMA purports to deny various federal benefits of marriage (lower income tax rates for married couples who file jointly, the unlimited marital deduction for estate and gift tax purposes, social security surviving spouse benefits) to couples who are legally married under the laws of their states. DOMA has always presented a serious problem under the Equal Protection Clause.

    Modern “conservatives” who rant about the primacy of “states’ rights” and the importance of federalism should STFU, let states define marriage, and welcome the invalidation of section 3 of DOMA (the provision that defines “marriage” and “spouse” under federal law to exclude same-sex couples). but they won’t welcome it.

    I expect that 50 years from now, most if not all U. S. states will allow same-sex marriages, and some Americans will look back to 2012 and wonder what all the fuss was about. The tide has turned.

  3. sailor1031 says

    …..”The art of lawyering, and making judicial decisions, frequently consists of finding an indirect way of doing what one wants to do but cannot do directly”

    Or the fascist majority can simply do what they have done before – ignore law and make up their own ideology-based interpretation. That’s always a danger with “strict constructionists”. One can have no confidence that the current politically motivated majority will do other than follow far-right faith.

  4. Jeff D says

    Just as religious apologists and theologians have a large, deep, body of literature (rich in detail, contradiction, and paradox) upon which they can draw in order to “support” any conceivable argument, lawyers and judges have another large, deep body of literature, rich in detail, contradiction, and paradox, on which theycan draw to support their arguments and their conclusions.

    As a lawyer, I am sufficiently knowledgeable and biased to contend that the methods used by lawyers and judges are different from (and more evidence-based and dependable than) what apologists and theologians do, but analogies can be drawn.

    Both “liberal” judges and “conservative” judges can and do engage in results-oriented jurisprudence: They determine what result they want, for crass or pragmatic political or economic reasons, and then they dip into the bag of tricks, doctrines, and catchphrases in order to construct a legal argument, complete with citations to past cases, that can be stated as the basis for the conclusion without causing the proponents to blush with embarrassment. I don’t know any lawyers or judges who will admit that this is what they are actually doing.

  5. Godless Heathen says

    Hey Jeff,

    I thought there was a law that states had to recognize marriages that were legally performed in other states. So, a gay marriage is still valid in a state that explicitly bans gay marriage.

    Is this true?

    After I wrote this, I thought it might be irrelevant to the post, since we are talking about the federal government, but I’m posting anyway because I’d like to know the answer.


  6. Patrick says

    Godless Heathen- You’re thinking of “full faith and credit.”

    The thing is, full faith and credit has always had an exception for marriages that contravene fundamental policy goals of the state (exact wording undoubtedly wrong because its from memory). For example, Ohio has for years refused to acknowledge out-of-state marriages in which one party was, under Ohio law, a child too young to marry. The exact extent of that exception is very unclear, and some people have argued that it shouldn’t exist at all. But historically it has, and it provides an obvious route for states to refuse to acknowledge gay marriages from outside their borders.

  7. Jeff D says

    Sorry for my delay in responding; on the road most of the day on June 1st.

    I agree with Patrick: The obligation of one state to accord “full faith and credit” to marriages that are legal in other states is subject to numerous loopholes and exceptions; in my home state of Indiana, one case is Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005), In that case, the plaintiffs had made a full-faith-and-credit argument in their first case at the trial court level but chose not to pursue it in the second case, which was appealed.

    The results are quirky and frustrating. Thus, Indiana law prohibits common-law marriages that are entered into or that evolve here, but Indiana law could recognize as valid a common-law marriage entered into between a “man” and a “woman” in another state where common-law marriages are legal. Does this reasoning apply to same-sex marriages that are legal in another state? No. Does this make sense? No.

    One of the purposes of DOMA was to confirm that no U. S. State or territory is required to give full faith and credit to (to treat as valid) a same-sex marriage that is legal in another State or territory. That’s in section 2 of DOMA, and that section was not found to be unconstitutional; the 1st Circuit Court and the District Court only found that section 3 of DOMA was unconstitutional under the equal protection clause. Section 3 is the restrictive federal definition imposed with respect to the interpretation of federal law (and federal benefits such as Social Security surviving spouse benefits):

    SEC. 3. DEFINITION OF MARRIAGE. (a) IN GENERAL.–Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

    “7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”.

    So, even if the 1st Circuit’s decision stands, any U. S. State that has not already legalized same-sex marriages will continue to be free to refuse to recognize such marriages as valid, for any purpose, within its own borders.

  8. Godless Heathen says

    Thanks, Patrick and Fred!

    It’s unfortunate that that part of DOMA was not ruled unconstitutional.

  9. thomwatson says

    It’s unfortunate that that part of DOMA was not ruled unconstitutional.

    Yes and no. It’s certainly unfortunate that any part of this heinous law is still in effect, but the unbundling of the various sections (Section 2 was not an issue in this case; it’s not that it wasn’t found unconstitutional, it’s that its constitutionality wasn’t under consideration because that section didn’t pertain to this case) and the incrementalism that results means we may have a better chance at defeating DOMA, piece by piece, when the individual cases reach SCOTUS.

    Before Section 2 really can be challenged, especially at the federal level, the unconstitutionality of Section 3 first needs to be upheld by the Supreme Court. It’s at that point that Section 2 comes into play, because the federal rights that will have been reinstated by overturning Section 3 will then become a federal issue. As it stands now, Section 2 cases often have been dismissed for lack of standing; since there is no federal recognition of marriage rights, due to Section 3, there is no separate federal constitutional issue regarding Section 2. That will change once Section 3 is overturned. (This is a simplification of the legal issues, but is still fairly descriptive of what’s happening.)

  10. Godless Heathen says


    Interesting. Thanks for explaining it in layman’s terms! As a non-lawyer, I find following legal issues rather difficult.

  11. says

    Didn’t Scalia threaten nuclear war over this or something? I’m sure I remember “over my dead body” quotes from him.

    Oh incidentally, in the next few days the Extreme Court is likely to toss out the voting rights act.
    Because everything is so equal now.

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