DOMA Ruled Unconstitutional By Conservative Panel

In a groundbreaking ruling, a First Circuit Court of Appeals panel struck down DOMA, ruling that the federal government does not have authority to deny same-sex couples benefits if they are legally married in a state.

What makes this ruling different from others is the composition of the panel: Two conservative judges, one liberal. The author of the opinion, Judge Michael Boudin, is a well-respected Bush appointee who, according to ThinkProgress recommends clerks for Supreme Court clerkships.

Chris Geidner:

Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: "[M]any 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. 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 decision follows oral arguments that were held in the cases on April 4. Today's decision upholds U.S. District Court Judge Joseph Tauro's July 8, 2010, decision finding the federal law defining marriage as consisting of only one man and one woman to be unconstitutional.

As ThinkProgress and Geidner note, the panel was unwilling to step on states who have amended their constitutions to ban same sex marriage:

Judge Boudin, however, is clearly worried about what I have at times labeled the “Alabama Problem” — meaning that a Supreme Court decision recognizing the Constitution’s full promise of equality must necessarily extend to states with a legacy of massive resistance to the Court’s civil rights decisions. The justices may not yet be ready to take such a politically controversial plunge. Significantly, Michael Boudin does not appear ready to take that plunge either, and so he inserts a bizarre states rights argument into an otherwise excellent opinion:

[T]he denial of federal benefits to same-sex couples lawfully marrieddoes burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

The upshot of this paragraph is that it allows Boudin to conclude that states like Alabama can continue to exclude gay couples from the Constitution’s promise of equality, while still extending that promise to couples in Massachusetts. But it is bad constitutional law that bears a disturbing resemblance to arguments the Affordable Care Act’s opponents have used to attack Medicaid. America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system.


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