Federal Appeals Court: DOMA unconstitutional

[Brittain33]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

[Brittain33]

I'm confused. Isn't the "Alabama must recognize my marriage" governed by a separate part of DOMA not covered here? Why does "the Feds must respect precedent and recognize my marriage" imply something in a different part of DOMA? Seems like a red herring to me. Why "bill of goods"?

There is very little precedent for the federal government to decline to recognize a legal state marriage. That's a high bar to climb. There is ample precedent for states to define marriage how they like. One could make an argument that they shouldn't be allowed to exclude same-sex couples because of equal protection, and possibly win, but it's a different threshold because it applies to states which have always had regulations on marriage and not the feds. I can easily see Anthony Kennedy deciding that having the feds pick and choose marriage was so unusual that you need a compelling reason to do it, but that equally so the Court isn't going to meddle in how states define marriage as long as it's consistent with their state constitutions. And then in 30 years we can deal with invalidating those discriminatory amendments, but not have the current ruling based in Mass. to have that impact. 

[Brittain33]

Here's a thought. If Anthony Kennedy sees this case coming down the pike as a slam-dunk for constitutional precedent and recognizing legal state SSM, he may be less likely to be the 5th vote to side with the 9th circuit and overturn Prop 8, because that case is further out on a limb.

[Brittain33]

I'm confused. Isn't the "Alabama must recognize my marriage" governed by a separate part of DOMA not covered here? Why does "the Feds must respect precedent and recognize my marriage" imply something in a different part of DOMA? Seems like a red herring to me. Why "bill of goods"?

because the First Circuit ruling is ultimately not based on a Federalism argument, tho it does employ one as a legal smokescreen.  It is based on an Equal Protection argument.  It argues that the Equal Protection rights of certain individuals are strong enough that the Federal government cannot come up with a different definition of marriage than the States.  If those rights are so strong that it causes State law to preempt Federal law then I cannot see how they would not also preempt the laws of other States and require them to recognize same-sex marriages done in other States.

Again, this is where I think the distinction that the feds have historically deferred to states to make marriage law and would need to make a strong case to make an exception here is the distinguishing factor. The federal government isn't in the habit of defining which marriages they'll recognize or won't, so why start now? The supreme court shows lots of deference to the states' ability to make their own policy. The same standard can carry different weight if the states or feds are making policy.

Besides that, having the federal government recognize legal state marriages is much less controversial, and much less likely to lead to civil disobedience and public rage, than the Supreme Court ordering clerks in Mississippi to issue marriage licenses to same-sex couples in 2012 when the state voted like 85% for their DOMA. That's certainly a consideration of the court.

If the concern is that federalism is a "smokescreen," isn't it likely that Kennedy would find for the plaintiffs on a federalism argument and not equal protection anyway?

[Brittain33]

Again, this is where I think the distinction that the feds have historically deferred to states to make marriage law and would need to make a strong case to make an exception here is the distinguishing factor. The federal government isn't in the habit of defining which marriages they'll recognize or won't, so why start now?

For a long time, the Federal and State governments used the same core definition of marriage: one man and one woman.

No, for a long time the Federal government didn't define marriage, but left it up to the states. Their "core definition" of marriage was "a marriage recognized by a state." It's an important distinction. This enabled the Federal government not to have to deal with many differences in state marriage legislation that you elide, such as cousin marriage and minimum age. The feds didn't define either of those.

The federal government keeps no registry or lists of married couples and issues no marriage licenses. That is a state responsibility and the federal government defers to the states to define it. Unless it's 1996 and gays are icky.

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You seem to be disavowing the importance of precedent in government decision-making. Why, after 200+ years, should it be constitutional for the government to introduce a discriminatory definition in the recognition of a state's marriage when it virtually never did it before? "Gays are icky." We know. But the Commonwealth of Massachusetts has a say in how it treats its own citizens.

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There were always disparities in how states defined marriage. In addition to the examples above, there were historic disparities in recognition of interracial marriage (or even whether African Americans could legally marry.) The federal government did not get involved then but deferred to the states.

If the disparity between the states was all that matters, then you should be fine with this decision, because it does not affect the ability of Alabama to decide not to observe my marriage. How is it Alabama's business if I file my federal income taxes jointly? DOMA has multiple sections and you continue to conflate the one covered in this case with another one which is different.

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Yes, it does. Most definitely so. It forces Massachusetts to discriminate in how it carries out policies with federal funding, like Medicaid or the administration of military cemeteries. That's the gist of the Massachusetts case that Coakley brought. It brings Massachusetts state policy into conflict with its own laws and constitution. That's not unprecedented - certainly federal policy has invalidated state constitutions from time to time. But you have to answer, why this compelling change in the way we've always done things?

Gays are icky doesn't cut it.

[Brittain33]

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

All of that already happens in state courts because of DOMA's other provisions, primarily with custody battles and divorce. Lots of same-sex couples end up in legal limbo and there is already the prospect for quasi-legal bigamy. Legalizing federal recognition would amplify the inconsistency but not make it new.

Recognition of marriage is ultimately defined by a million interactions with local officials and any full faith and credit solution would only take root at the top. You still wouldn't be able to get local justice or services as a same-sex couple, who could fight it?

[Brittain33]

It seems like equal protection rather than federalism to me. Sure a state can have same sex marriage, but why do the Feds have to hand out money and whatever based on what a state allows for a marriage? The states can do their thing, and the feds theirs. That's federalism. To force the feds to hand out benefits or costs based on a state definition of who is married, needs the instrument of equal protection, or a Kennedy "fundamental expression of liberty" theory. I tend to doubt Kennedy will bite.

It's what states have always done. They haven't been forced, they've just consistently outsourced definitions of marriage to the state. Then the specter of same-sex marriage came along and you got a radical change of policy at the federal level.

[Brittain33]

In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws.

Couldn't they accomplish the same thing by enforcing the Full Faith and Credit clause for marriage without codifying a federal definition of marriage?

[Brittain33]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

[Brittain33]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

One like The Mikado's but with kids and property and a whole mess that make an elegant solution impossible.

[Brittain33]

But you have to answer, why this compelling change in the way we've always done things?

I already answered,  Go back and read what I already wrote if you want the details, but the short version is that State governments changed the definition of marriage and the Federal government declined to go along with that change.

We're talking past each other.

The change is for the federal government to decide to break from the states, when in the past it rode along with them through many other changes, principally about race.

I get the "common sense" argument here--people couldn't conceive of the federal government recognizing same-sex marriage when it was a fringe idea because one state had it. I get that. What people need to recognize is why thus policy, which seemed conservative, actually represented a radical break from the past. And now that a significant share of Americans live in states where it's an option, more than just Vermont, it's past time to account for that.