May 31, 2012 | by Chris Johnson
HISTORIC: Federal appeals court strikes down DOMA

A significant blow came to the Defense of Marriage Act on Thursday when for the first time a federal appeals court ruled the anti-gay law was unconstitutional.

In a unanimous 3-0 decision, the U.S. First Circuit Court of Appeals in Massachusetts ruled that Section 3 of DOMA, which prohibit federal recognition of same-sex marriage, violated married same-sex couples rights under the U.S. Constitution.

“To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today,” the decision states. “One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The ruling was written U.S. Circuit Court Judge Michael Boudin, who heard the case along with Chief Circuit Judge Sandra Lynch and Circuit Judge Juan Torruella.

Lynch was appointed by a Democrat, former President Bill Clinton, but the other judges were appointed by Republicans. Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.

The decision was brought down in two cases challenging DOMA: Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders; and Commonwealth of Massachusetts v. Department of Health & Human Services, which was filed by Massachusetts Attorney General Martha Coakley.

The Gill lawsuit contends that DOMA is unconstitutional because it violates equal protection under the U.S. Constitution, while Commonwealth lawsuit argues DOMA violates a state’s right to regulate marriage under the Tenth Amendment.

In a statement, Coakley praised the ruling as evidence that DOMA violates married gay couples’ rights under the U.S. Constitution.

“Today’s landmark ruling makes clear once again that DOMA is a discriminatory law for which there is no justification,” Coakley said. “It is unconstitutional for the federal government to create a system of first- and second-class marriages, and it does harm to families in Massachusetts every day. All Massachusetts couples should be afforded the same rights and protections under the law, and we hope that this decision will be the final step toward ensuring that equality for all.”

Retiring gay Rep. Barney Frank, a Democrat who represents Massachusetts in Congress, also praised the ruling and expressed confidence the ruling against DOMA will be upheld when the case reaches the Supreme Court.

“The current situation, in which the rights of some couples married in other states are recognized, while the rights of other couples married in those states are denied, is clearly a violation of the U.S. Constitution,” Frank said. “I am confident that the U.S. Supreme Court will add its support for this decision which is so firmly grounded in long-standing American constitutional principles.”

The appeals court ruling affirms U.S. District Court Judge Joseph Tauro’s decision against DOMA in the two decisions he delivered in response to the lawsuits in July 2010. Since that time, President Obama has discontinued defending DOMA in court. Two other federal courts have also concluded that DOMA is unconstitutional.

Douglas NeJaime, who’s gay and a law professor at Loyola Law School, called the First Circuit decision “concise and relatively straightforward” and said the bigger question is whether this case or the challenge against California’s Proposition 8, Perry v. Brown, will first reach the Supreme Court.

“Whichever case makes it there first will have significant consequences for the same-sex marriage movement,” NeJaime said. “If Gill gives the Court its first bite at the same-sex marriage apple, the justices will address the more limited and potentially less controversial question of the federal rights of same-sex couples who are already married. Whereas Perry could present the Justices with broader questions of the rights of same-sex couples to marry, potentially across the nation.”

The Bipartisan Legal Advisory Group, under the direction of House Speaker John Boehner, voted on a party-line basis to take up defense of DOMA in the administration’s stead. It’s likely to appeal the decision either to the full First Circuit or the U.S. Supreme Court.

Oral arguments before the First Circuit took place April 4. Mary Bonauto, GLAD’s civil rights project director, represented her organization during the hearing. Massachusetts Assistant Attorney General Maura Healey argued on behalf of Massachusetts.

Defending DOMA in court was Paul Clement, a former U.S. solicitor general. After the Obama administration declared it would no longer defend DOMA, House Speaker John Boehner hired Clement to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.

Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, also litigated against the anti-gay law in court.

NOTE: This post has been edited and updated.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

6 Comments
  • Anthony Grimes

    I thought I would share my story with you as we are Bi-nationals, I’m an African American and been with my White English partner for the past thirteen years. We met in the states but with pressure mounting as he was in the US illegally we had to move to England, where I have been greeted with open arms. I live here in the UK legally; we have had our civil partnership, and I also have a small job.
    I have a large family back in the US and I miss them so much my partner also misses my family so if you are reading this Mr President please sign an executive order and overturn Doma. I am an Untied States Citizen; if I was straight my wife would automatically get Citizenship, but as I’m Gay I have to live in exile. Mr President we are not wealthy just hard working class people, it just happens that I love someone of the same sex, and I have to live in exile, it’s like a prison sentence for a crime of being Gay. Please Mr President Sign an executive order so I can come Home and be the rest of my family.
    Yours
    K.A from England

  • Anthony — Your plight is real, but unfortunately U.S. Presidents cannot revoke U.S. laws by Executive Order. That’s not the way the U.S. Constitution is set up.

    DOMA’s final demise in the courts is just a matter of time. For those of us riding the wave at this particular point in history, the ride is painful. But the eventual outcome is assured.

  • This is excellent news, especially in light of the fact that two of the three judges were Republican appointees. The anti-gay bigots must be freaking out right now, because they know that DOMA will ultimately be overturned. I just hope it happens sonner rather than later, and that the current Supreme Court will do the right thing and vote to overturn DOMA. I still worry that some of the justices, (can you say Scalia & Thomas) may just vote against us regardless of the laws fairness.

  • Well, this article explains everything.

    I live in Bath County, Virginia, and when I came home the other night, someone had dumped a bag of horse manure on my front porch.

    My first thought was, “Damn those rascally squirrels.” But when I turned on the porch light and saw that it was horse manure, I realized that someone out there was sending me a message.

    Their message was clear: “You are no longer welcome here in Bath County. Nor in Virginia, for that matter.”

    Frankly, I was glad to have the horse manure, but I wished they had dumped it in my flower garden rather than on the welcome mat in front of my front door.

    I live alone, had planned to retire here, and I tend to keep to myself. Living in a rural part of a politically conservative state, to survive as a gay man, you keep your head down and you don’t make waves. And unlike everyone else, you certainly do not flaunt your sexuality.

    My initial thought when I saw the horse manure was that someone was ticked off about President Obama finally coming out and publicly supporting same-sex marriage. Or perhaps it was this recent federal appeals court decision.

    Whichever, the local Virginia bigots are not pleased, and they are beginning to vent their displeasure. I have a sense that it is going to get even more ugly in the coming months. Perhaps it’s time that I pull up stakes and move, before someone torches my house.

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