Another victory for same sex marriage

The US First Circuit Court of Appeals has dealt another blow is favor of same sex marriage by uninanimously ruling that the infamous Defense of Marriage Act (DOMA) is unconstitutional.

While it did not declare that there was an absolute right under the US constitution for same sex couples to marry, and it recognized the rights of each state to decide what constituted marriage, it ruled that if a given state recognized the marriage of same sex couples, then the federal government did not have the right to deny them the same federal rights and benefits that opposite sex couples in those states enjoyed. This seems eminently commonsensical.

Although the ruling was rather narrow, it is still significant. The problem for the opponents of equal rights for same sex couples is that once some states recognize the rights of same sex couples, the contradictions in their position become exposed. The only consistent argument they have is a religious one that says it must be so because their holy book says so, and legally that is a loser straight off the bat. The closest historical parallel I can think of is the ban on inter-racial marriage.

The US Supreme Court will get its chance to weigh in on this issue within the year. Given that there are six Catholics on that body (Roberts, Scalia, Thomas, Alito, Kennedy, and Sotomayor) it will be interesting to see how that turns out. How far will they be willing to go to appease their church, since you can be sure that the Catholic Church will be going on the warpath over this? The remaining three court members are Jews (Ginsburg, Breyer, and Kagan) and seemingly of a more moderate-secular bent. None of them (as far as I know) is Orthodox and so are unlikely to want to twist the interpretation of the constitution to accommodate nakedly religious motivations that are not of their own tradition.

Will this case turn out to be the equivalent of the Virginia v. Loving verdict of 1967 that ended all race-based restrictions on legal marriage for good? I hope so.


  1. Paul Durrant says

    If DOMA gets struck down, don’t all states then have to recognise marriages of same-sex couples that occurred in other states?

    Consider first-cousin marriages. It’s not possible for (opposite sex) first cousins to marry in several states, but if first cousins get married in a state that allows it, every state has to recognise that marriage as legal, even if it couldn’t have been entered into in that state.

    Wasn’t that the whole point of DOMA? To prevent one state allowing same-sex marriages causing all states to have to recognise same-sex marriages?

  2. stonyground says

    The only arguments that those who oppose gay marriage have are either religious or based upon some dire predictions about the total collapse of society due the abandoning of family life. The religious arguments hold no weight in any secular or pluralist society. The dire predictions fall down when more enlightened societies legalise gay marriage and suffer no negative consequences whatsoever.

  3. slc1 says

    Justice Sotomayor is, at best, a nominal Catholic and will almost certainly vote to uphold the appeals court decision. The only vote that counts is Kennedy and the narrowness of both the Prop. 8 decision and this one are targeted directly at him.

    However, if Romney is elected in November and has an opportunity to replace Justice Ginsburg, there can be no question that such replacement will vote to overturn the decision, as well as vote to overturn Roe vs Wade. A very good reason not to do anything to put him in the White House.

  4. Mano Singham says

    DOMA covered many issues. The court did not rule on the particular question you raise because I don’t think the plaintiffs were arguing for that, only on whether they were entitled to federal benefits.

  5. Dan-o says

    Let’s hope then that Romney is elected for the reason slc1 stated above and second my grand children’s future. I do not have any yet but someone will have to pay the debt Obama has rung up.

  6. 'Tis Himself says

    The homophobes keep telling us that same-sex marriage will “destroy marriage as an institution.” When asked how this will happen, they’re a little vague on the details.

  7. 'Tis Himself says

    If elected, Romney will do his utmost to lower taxes on the super-wealthy (including himself), lower the corporate tax level, and eliminate inheritance taxes. These actions will most likely raise the public debt.

  8. Steve says

    First off, all these lawsuits are only about Section 3. The state-to-state recognition is set in Section 2.

    Second, even if the entirety of DOMA were to be struck down, the Supreme Court created a “public policy” exception to the Full Faith and Credit Clause, stating that states can ignore other laws if they go against the state’s public policy . That will certainly be invoked at some point. Note that this applies to laws and usually not individual court judgments, which is why for example adoption degrees are usually transferable between states

  9. Chiroptera says

    …but if first cousins get married in a state that allows it, every state has to recognise that marriage as legal, even if it couldn’t have been entered into in that state.

    My understanding is that this is not true. States are not obligated to recognize all marriages that are performed in other states.

    In the case of marriage between first cousins, some states forbid such marriages within their jurisdictions but will recognize them if performed in another state where it’s allowed, but other states won’t recognize them at all.

    My understanding is that currently case law has upheld a state government’s power to not recognize such a marriage even if performed in another state.

  10. peter says

    You really think Romney would do anything that goes against the evidence the previous Republican presidents offer us? If you do think so, why? What is it that makes you think he would enact the exact opposite policies of the Republicans who came before him?

    The debt will shrink as the economy grows and taxes are raised. That former is an if, the latter is a when.

  11. Steve says

    I also love the “The sky will fall any day now thing”. When you point out that some countries have had same-sex marriage for a decade, they say that we don’t see negative effects now, but just wait another decade and we’ll certainly see the disaster

  12. Uri says

    i wouldn’t be surprised if some of the right wing justices voted to uphold this ruling. perhaps not on equal protection grounds, but on the other grounds discussed by the first circuit opinion (which was written by the very conservative judge michael boudin): federalism. the general idea is that the laws of marriage are so peculiarly within the purview of the states that the federal government lacks the power to regulate it. the first circuit opinion doesn’t state it so sharply, but this concept was one of the dynamics underlying its decision. some of the right-wingers on the current court have written opinions narrowing the scope of the federal government’s powers, and might find it hard to justify to themselves permitting the federal government to define marriage. to put it briefly: in the tension between anti-gay sentiments and states’ rights sentiments, some of the right-wing justices may well rule in favor of states’ rights.

  13. Steve says

    They court rejected the Tenth Amendment argument however, saying that it only applies when the federal government completely takes over how a state decides some issue. They only acknowledged that their reasoning to do so should play a larger than usual role in judging how they justify that interference (rational basis plus)

  14. slc1 says

    By the way, I would remind Prof. Singham that the Governors of the two states that recently passed laws recognizing same sex marriage, namely Andrew Cuomo of New York and Martin O’Malley of Maryland are both Roman Catholics.

  15. Frank says


    Would your (presumptive) grandchildren be harmed by the Supreme Court upholding this decision?

  16. Arthur says

    Why don’t we oppose gay marriage on evolutionary grounds? After all if this practice is widespread throughout the primate population then the population collapses and since there are only two values in evolution i.e. survival and propagation of genetic material, this is against traditional evolutionary values. We should oppose this to save our species. On the same note, any species that destroys its unborns before they are born or supports the killing of their new borns once they are born (e.g. afterbirth abortion) will also collapse. Save the humans!

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