This column by ACRU Senior Legal Analyst Ken Klukowski was published June 5, 2012 on Breitbart.com.
The Supreme Court is the next stop in the battle over the definition of marriage, thanks to a federal appeals court partially striking down a law defending marriage passed by a strong bipartisan majority and signed by President Bill Clinton.
Congress enacted the Defense of Marriage Act (DOMA) in 1996. It passed the House 342-67, and the Senate 85-14, with strong bipartisan supermajorities. But DOMA is under attack in federal court. Then President Barack Obama joined those challenges, with Attorney General Eric Holder abandoning his duty to defend Acts of Congress in court, and instead filing legal briefs arguing the courts should strike down DOMA. So Congress has retained outside counsel to do Holder’s job, with its Bipartisan Legal Advisory Group (BLAG) hiring the finest Supreme Court lawyer in the nation, former U.S. Solicitor General Paul Clement, to defend DOMA.
Two provisions of DOMA are newsworthy. The first is Section 2, providing that if one state creates same-sex marriage, other states are not required to recognize them. The other is Section 3, providing that for federal law and federal programs–such as Social Security spousal benefits–marriage is defined as one man and one woman.
In Boston, the U.S. Court of Appeals for the First Circuit heard appeals on two cases challenging Section 3 of DOMA, the federal-benefits provision. A three-judge panel affirmed the lower court’s judgment siding with the plaintiffs in Massachusetts v. Dept. of HHS and Gill v. OPM. (There are also lawsuits challenging Section 2–regarding one state recognizing same-sex marriage from other states–but they are further back in the legal pipeline.)
Writing for the court, Judge Michael Boudin sided with many of Clement’s arguments on behalf of Congress, and against the plaintiffs and the Obama administration. “Congress surely has an interest in who counts as married,” Boudin acknowledged, and added “the denial of federal benefits to same-sex couples … does not burden the choice of states like Massachusetts [to create same-sex marriage].”
The First Circuit rejected plaintiffs’ argument that DOMA is driven by hostility to homosexuals. It likewise rejected challenges to DOMA brought under the Spending Clause of the Constitution (relevant because Section 3 implicates various federal entitlement programs) and the Tenth Amendment.
In a significant win for supporters of traditional marriage, the appeals court also declined to say that any form of “heightened scrutiny” applies to laws impacting people on the basis of sexual behavior, which implicitly rejects the idea that same-sex marriage is a fundamental right. This is also a refusal to equate gay rights with civil rights for racial minorities, since laws discriminating on account of race are subject to “strict scrutiny”–a high hurdle that few laws can satisfy and that gay-rights activists argue should apply to DOMA and other marriage laws. Boudin correctly observed that “such a classification could overturn marriage laws in a huge majority of individual states underscores the [profound] implications.”
But the rest of the decision went for the challengers of DOMA. The First Circuit acknowledged states generally have “broad police-power authority over morality and culture,” and specifically that “DOMA intrudes extensively into a realm that from the start of the nation has been primarily confided in state regulation…”
The court found that part of the impetus for DOMA is a moral judgment regarding homosexual behavior, and correctly noted, “For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted.” The court also surveyed decades of precedent, and added, “For 150 years, [the] desire to maintain tradition would alone have been justification enough for almost any statute.
But the court then noted recent Supreme Court cases where the court struck down laws regarding homosexual conduct, and concluded that the judiciary now subjects such laws to a critical examination. The First Circuit also decided there is a “lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”
Boudin declared, “We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.”
The appeals court thus tossed this issue up to our highest court, adding “Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgments and good faith being entitled to utmost respect. But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation.”
Supporters of gay rights applauded the First Circuit’s decision, though some of their more legally-sophisticated analysts were concerned about the First Circuit’s rejection of heightened scrutiny and acknowledgement of Congress’ legitimate role in federal entitlements concerning marriage, and that historical bases for legislation will vindicate DOMA if the Supreme Court chooses to apply them.
Tony Perkins, president of the Family Research Council which supports DOMA, responded to the decision, saying, “The argument that the authors of our Constitution created or even implied a ‘right’ to redefine marriage lies outside our constitutional law.”
The Alliance Defend Fund (ADF) is a Christian legal organization which is centrally involved in protecting traditional marriage in the federal courts. ADF’s lead counsel in the DOMA litigation, Dale Schowengerdt, noted that there is no legal principle on which courts can legalize same-sex marriage without also legalizing polygamy, and that the First Circuit’s decision is no exception. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the right to step in against polygamy at one time in our nation’s history [which the Supreme Court upheld in 1878], and it has the right to step in against this attempt at marriage redefinition as well.”
Clement will now petition the U.S. Supreme Court to take the case, and this is one of the rare cases that you can predict at the outset the justices are very likely to take. If so, this case should be heard in early 2013.