NOM BLOG

William Duncan on 1st Circuit Appeals Court Finding DOMA Unconstitutional

 

The Associated Press covers the news. We will have a press release issued shortly.

In the meantime, William Duncan comments at National Review:

This morning a panel of the U.S. Court of Appeals for the First Circuit issued an opinion holding the Federal Defense of Marriage Act unconstitutional. The court rejected the implausible argument of the trial court that that principles of federalism prevented Congress from defining terms used in federal law. It also declined the invitation to treat a law that considers the category of “sexual orientation” as equivalent to race (i.e. by employing strict or intermediate scrutiny judicial review). The court very clearly says that under the normal approach the courts would use to determine whether Congress had a “rational basis” in passing a law, DOMA would be upheld.

... So, why is DOMA unconstitutional? The court concludes that there is a new legal standard that has been emerging in the law whereby the U.S. Supreme Court has “intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.”

... To recap: Three judges on a federal appeals court purported to apply two amendments to the U.S. Constitution, the Tenth and Fourteenth, to Congress’ definition of marriage which forecloses same-sex marriage for federal-law purposes. The panel said the law did not exceed Congress’ power and would be valid under any analysis used between the time of the ratification of the Fourteenth Amendment (1868) and 1973. The panel said, however, that since 1973 the implications of a handful of U.S. Supreme Court decisions have newly invested the federal courts with a power to second-guess Congress’s purposes. In this case, these three judges decided Congress’s rationales for preserving in law what has been the overwhelming norm of marriage (probably unanimous) for millennia just didn’t measure up.