One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama-even before his recent announcement declaring support for marriage equality-had refused to defend the constitutionality of DOMA in court. In an even more important sign of progress today, the worst provisions of the Defense of Marriage Act were ruled unconstitutional by a unanimous three-judge panel of the 1st Circuit Court of Appeal.
And particularly since this case is nearly certain to end up in the Supreme Court, the fact that this panel included two Republican appointees is also important. Judge Michael Boudin, a respected conservative and former official in the Department Justice under Ronald Reagan, wrote the opinion, which was also featured Reagan appointee Juan Torruella (as well as Clinton appointee Sandra Lynch). It is impossible to know whether the Obama administration's decision affected the opinion today, although Boudin does discuss it explicitly.
As Ian Millhiser points out, Judge Boudin's narrow opinion is probably not the one most liberals would have written. Boudin is clearly sympathetic to the purposes of DOMA, and he also cites decisions limiting federal power (especially the nullification of a provision of the Violence Against Women Act in U.S. v. Morrison) that most progressives have found dubious. But in terms of the securing the goal of getting DOMA ruled unconstitutional by the Supreme Court, the relatively conservative character of the opinion is a feature rather than a bug. An argument that DOMA "does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage" may not be the primary problem most progressives have with DOMA, but the argument is much more likely to appeal to Justice Kennedy and perhaps even Justice Thomas than many other arguments would be.
And the opinion does not just rely on federalist arguments, either. Appropriately, the 1st Circuit did not find that classifications based on sexual orientation are subject to heightened scrutiny, a position that I consider erroneous but one that a circuit court has to apply since it is the current position of the Supreme Court. But, in light of important precedents such as Romer v. Evans, Boudin also correctly notes that classifications based on sexual orientation should not be given the extreme deference the court generally gives to economic relations. Based on this "rational basis with teeth" analysis, Boudin found that DOMA's denial of federal marriage benefits to lawfully married same-sex couples "not been adequately supported by any permissible federal interest." Boudin is particularly good on the central asserted interest of Congress, the desire to strengthen heterosexual marriage:
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, 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. [cites omitted]
The other possible justifications-saving money and expressing moral disapproval-are also clearly impermissible under current Supreme Court precedent, and in the case of the former probably isn't even empirically accurate on its own terms, as studies have suggested that DOMA has been more expensive for the federal government.
Like Judge Reinhardt's opinion ruling Proposition 8 unconstitutional, Boudin's opinion tries to work within the framework of existing Supreme Court precedent rather than pushing the envelope. But this is more likely to appeal to a Supreme Court with a conservative median vote, and the fact that it comes from a respected Republican jurist is even more promising. The chances of DOMA surviving its date with the Supreme Court have just gotten worse, and for people who care about justice and equality this is unequivocally good news.
