Gill Goes As Anticipated
The First Circuit Court of Appeals issued its ruling in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services this morning. To the surprise of absolutely no one, a unanimous panel found section 3 of the Federal Defense of Marriage Act unconstitutional in violation of the Equal Protection Clause.
More interesting is the strong Tenth Amendment reasoning relied upon by the First Circuit. Based on the reasoning placing heavy emphasis on the “historic role of the states in defining marriage,” it appears that states that have enacted SSM bans into their statutory laws or constitutions are free to continue doing so. As yet unlitigated (at this level) are cross-boundary validity cases.
Enforcement of the order is stayed pending denial of certiorari by the U.S. Supreme Court. (I hasten to add, just after publishing — I doubt certiorari will be denied, so that means enforcement will be stayed until and unless SCOTUS affirms.)
As others have pointed out, this seems like the perfect way to split Tony Kennedy down the middle. I expect SCOTUS to affirm and punt the rest of the issue.Report
Um… hazzah?Report
Is it wrong that I find the picture associated with this post kinda hot?Report
yes.Report
I’m just hoping there’s enough Liberty and Justice for all.Report
i’m still laughing as i’m typingReport
Well played.Report
Well, they are under God. Apparently the Big Guy likes to be on top.Report
I don’t think the opinion relies on the Tenth Amendment; in fact, it specifically rejects arguments based on it. From the opinion:
“In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded…”
“That Congress has traditionally looked to state law to determine [the definition of marriage] does not mean that the Tenth Amendment or Spending Clause require it to do so…”
“Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government…[w]hatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.”
The argument of the court, based on my reading of the opinion, is that DOMA’s stated reasons for enactment were 1) to save money (fewer spouses to pay benefits to), 2) to encourage child-rearing (same-sex couples cannot biologically reproduce in the typical manner), 3) moral (icky homos). #1 was shot down on practical grounds, #2 was declared to be overtaken by technology and societal practice, and #3 was declared invalid due to Lawrence v. Texas.Report
My post was prompted by the comment about the Tenth Amendment, and my reaction of “oh wow, suddenly that exists again?”Report
Well, there was New York v. United States: http://en.wikipedia.org/wiki/New_York_v._United_StatesReport
You’re ahead of me on the wording of the opinion, Duck; I only barely glanced through it at lunch.Report
You’re correct that the opinion does support the idea that Congress could not make a law preventing states from passing same-sex legislation. It just says “DOMA isn’t passed by the states and doesn’t deal with state-level spending, so the Tenth Amendment cannot be used to challenge it”.Report
Overall a pretty good outcome to my mind.Report
Linking the PDF makes it a bit more readable.
The most interesting to me was the following:
Although the House Report is filled with encomia to
heterosexual marriage, DOMA does not increase benefits to
opposite-sex couples–whose marriages may in any event be childless,
unstable or both–or explain how denying benefits to same-sex
couples will reinforce heterosexual marriage. Certainly, the denial
will not affect the gender choices of those seeking marriage. This
is not merely a matter of poor fit of remedy to perceived problem,
Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at
446-50, but 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.
I wonder how many from the opposite side of the discussion argue that there would be an increase in heterosexual marriages – by bisexuals perhaps? – if they were denied the opportunity for a homosexual marriage. Or if there is a theory from the opposite side that some heterosexual marriages by bisexual or gay men or women might survive if they believed divorcing to seek a homosexual partnership not an option. Or even if the opposite side of the discussion was interested in creating situations like this.Report
Truth is an odd, odd thing.Report