On April 4th, the First Circuit Court of Appeals, despite some twists and turns (to be explained), will hear arguments on a lower court ruling that ruled the Defense of Marriage Act (DOMA), passed in 1996, unconstitutional. Specifically, Section 3 of that Act is moving towards a collision course with the Supreme Court. Section 3 defines the term “marriage” as being between a man and a woman and defines “spouse” as a husband or wife of the opposite sex for purposes of federal law. The practical effects are that same-sex couples are excluded from federal benefits such as filing joint returns. The outcome of the challenges to this section of DOMA in the First Circuit will likely determine when the case possibly lands before the US Supreme Court.
Not so clear is when or if Section 2 of DOMA will ever make it to the Court. Section 2 says that states do not have to give legal status to same-sex couples recognized in other states. That is, the marriage license of same-sex couples, if such exists, is not portable. Basically, Section 2 explains the main reason for DOMA. In 1993, Hawaii recognized same-sex marriage. Under Article IV, Section 1 of the US Constitution, states are supposed to give “full faith and credit” to the laws and court rulings of other states. However, Article IV also grants Congress the power to regulate the breadth of “full faith and credit.” Hence, their enactment of DOMA is clearly constitutional. Section 2 carved out an exception to Article IV with respecting the relationships between persons of the same sex treated as “marriage” in another state. Note that nothing in DOMA precludes states from banning same-sex marriage, nor does it direct states to accept same-sex marriage. In short, it is left up to the states to decide the parameters of “marriage,” which is a traditional area where states have wide latitude without federal interference…before the radical gay activist agenda.
There have been challenges to Section 2, but they have been unsuccessful due to issues of standing. In order to challenge Section 2, a same-sex couple would have to marry in, for example, Massachusetts and then relocate and establish residency in a state that does not have gay marriage, like Georgia. Then they would have to be denied state benefits that opposite-sex couples enjoy in Georgia. Then, and only then, a “harm” can be claimed and adjudicated. It is conceivable that such a challenge could occur in the near future, but thus far it has not happened. When it does, there is no doubt that the eventual ruling on the constitutionality of Section 3 will be used as precedent.
Section 3, on the other hand, is the key section here because “harms” to gay couples have occurred. That is, the federal benefits afforded opposite sex couples have been denied to gay couples thus constituting a “harm” and, therefore, “standing.”
The lower court ruling struck down Section 3 relied not on the Equal Protection Clause of the 14th Amendment but instead on the implied equal protection aspects of the 5th Amendment. Using the lowest level of scrutiny- rational basis- the judge decreed that Congress had no rational basis for passing Section 3. The Congressional reasons were defending traditional notions of morality and elevating the importance of opposite-sex couple marriage. Simply, the judge in this case swept away these Congressional reasons for enacting the law. But, he did not stop there. He also ruled that Section 3 could not be justified under the ability of Congress to attach strings for federal benefits. Then in a true liberal twisting of conservative thought, he decreed that Section 3 was an unnecessary federal intrusion into the Tenth Amendment’s traditional repository of regulating “marriage.”
All this was further complicated when the Obama Administration, through Eric Holder, announced that they were not going to defend DOMA in the First Circuit appeal. Their brief asserted that Section 3 should be analyzed using strict scrutiny and, therefore, found unconstitutional. In essence, Holder and company are now in total agreement with the lower court ruling and believe that DOMA should be struck down, particularly Section 3. So if the federal government refuses to defend a federal law, who does? The First Circuit is allowing a group called the Bipartisan Legal Advisory Group (BLAG) to take up defense of DOMA. BLAG is composed of five members of the US House of Representatives- the Speaker, the minority and majority leaders and whips. They voted 3-2 (guess who voted against) to defend DOMA in the First Circuit case. As an aside, a judge in California, in a similar case, ruled that Section 3 violated equal protection whether using rational basis or heightened scrutiny standards.
As stated earlier, the case will be heard on April 4th in Boston. How soon the case reaches the Supreme Court depends upon how soon that Circuit Court releases an opinion and which way it goes. Assuming a best case scenario, they hear the case on April 4th and release an opinion by July 15th, 2012. That would then result in an appeal to the US Supreme Court probably by October 2012. It is possible that should the Court decide early in 2012 term to take the appeal, we could see it on the Supreme Court docket by the end of this year.
In an earlier article here on RedState, I said that this challenge would be a better vehicle towards resolution of the gay marriage question one way or the other rather than the challenges for and against Proposition 8 in California. Thus far, except at the fringes, the Supreme Court has been reluctant to get into the gay marriage debate. This Section 3 challenge will pull them in full throttle. While it is certainly within their power to strike down laws that violate the Constitution should they find such a violation, I still maintain that the best method is legislative. That is, if DOMA is really so bad as its opponents contend, then Congress needs to take up review, revision, or rescission of the law. The proper place for the definition of marriage is within the legislative branch, not the judicial, where it has been since before this country was founded. Admittedly, there is no national consensus on the definition of marriage or else there would not be such controversy today. However, it needs to be noted that outside the context of gay marriage, many laws discriminate to some degree on a daily basis. There most likely is a happy compromise to the problem and personally I believe that compromise is DOMA in the first place. DOMA recognizes the right of states to define marriage with respect to residents of that state. They do so with regards to bans on incestuous marriages, ages, and in other areas. The opponents of DOMA, when one breaks down the arguments, believe that laws against gay marriage are predicated upon irrational stereotypes and misinformation. If that is the case, then obviously it leads to bad law and policy with possible constitutional implications.
Since we are talking about “marriage,” this area has traditionally been defined and “regulated” at the state level. There is no national “marriage law.” It is conceivable that DOMA can be amended to extend federal benefits to same-sex couples provided they were married in and are residents of states that recognize same-sex marriage. This would show greater deference to state rights in this area. But what about the gay couple that marries in Massachusetts then moves to Georgia. Remember that we are talking about federal benefits here. Those federal benefits could follow the couple even if Georgia does not recognize same-sex marriage. However, like Section 2’s recognition of Congressional exceptions to Article IV, Section 1, Georgia would be under no obligation to recognize that “marriage” under their laws and benefits. In short, for federal benefits purposes- the primary reason these challenges exist- the federal government can “recognize” the marriage with respect to the laws in the state where that marriage took place, but states would not be under a similar obligation. Again, note that this debate would take place in the legislative branch. It would be a happy compromise, should the LGBT community succeed at the national level, where they get what they want with respect to federal benefits while further respecting the rights of states to define marriage and the state benefits that therefore attach.
I will probably be taken to task for this because many people here feel very strongly about this issue. However, although the LGBT community would like us to believe otherwise, the best estimates I can find of the gay population in the United States is approximately 2-3% of the total. In a way, this is a “problem” that is much ado about very little. Of course, the hardcore conservative will take umbrage with this analysis. However, I do not believe that any state which recognizes gay marriage has slipped into the ocean. Where the people have spoken- either directly through referendum or through their elected officials- one way or the other, the great apocalyptic visions have not occurred. In states that recognize gay marriage, there has not been a problem with gays adopting children to inculcate them into the gay lifestyle. Likewise, in states that do not recognize gay marriage, homosexuals are not being chased out of the state by a band of people with pitchforks and clubs.
Regardless, this case will likely reach the Supreme Court before the Proposition 8 case. Should they even take the Proposition 8 case, it is likely that it will be held for consideration pending the outcome of the DOMA case. That is, DOMA need be decided first as it directly affects the Proposition 8 case more than Proposition 8 affects DOMA.