GLAD @GLADLaw
Gill DOMA decision is out - we won!! Decision to be posted soon!
Sean Eldridge @SeanEldridge
BREAKING: DOMA struck down in 1st Circuit Gill v. Office of Personnel Management case. Congratulations @GLADLaw! On to the Supreme Court.
Pam Spaulding @pamspaulding
BREAKING: Two Republican Judges Declare DOMA Unconstitutional | ThinkProgress http://bit.ly/...
For the first time, a US Appellate Court has ruled the
Defense of Marriage Act unconstitutional. A First Circuit Court of Appeals three judge panel just released its decision in
Gill.
Via Thinkprogress:
A three judge panel of The United States Court of Appeals for the First Circuit just handed down a decision declaring the anti-gay Defense of Marriage Act unconstitutional. Notably, the panel included Judges Juan Torruella and Michael Boudin, both of whom are Republican appointees. Judge Boudin, who authored the opinion, is one of the most highly regarded judges in the country; he frequently sends his former law clerks to clerk for Supreme Court justices. More analysis of his opinion will follow shortly.
Federal District Judge Tauro had ruled DOMA unconstitutional back in 2010, then it was appealed to the First Ciruit, and because of various motions and circumstances was delayed. The oral arguments were held in early April, so this is a relatively quick decision (less than two months).
This is particularly important because in a 2008 case, Cook v Gates, the entire 1st Circuit had found that gays and lesbians were not entitled to heightened scrutiny, and therefore DOMA would have to be judged in a rational basis arena. So, without having seen the decision, the implication is that the First Circuit panel found that there was no rational basis for DOMA, just as Judge Tauro and a number of other Federal District Court judges in other ciruits (Cf. Golinski) done. Thus a very strong ruling. UPDATE: They did not so find. Nor did they find for heightened scrutiny. Apparently some kind of convuluted in-between basis. See the updates.
Despite the enthusiasm of the tweet above, the path is not necessarily direct to the Supreme Court. The case could be heard en banc by the entire First Circuit before being appealed to the Supreme Court. This is what happened in Perry (the California Proposition 8 case), and is likely to happen here, if for no other reason than it is a means of delay.
More information as available.
7:36 AM PT: Huffington Post article. But it has no new information.
7:37 AM PT: THE APPELLATE RULING (PDF):
Gill v OPM
7:41 AM PT: Excerpts from the decision:
Although our decision discusses equal protection
and federalism concerns separately, it concludes that governing precedents under both heads combine--not to
create some new category of "heightened scrutiny" for DOMA
under a prescribed algorithm, but rather to require a
closer than usual review based in part on discrepant impact
among married couples and in part on the importance of
state interests in regulating marriage. Our decision then
tests the rationales offered for DOMA, taking account of
Supreme Court precedent limiting which rationales can be
counted and of the force of certain rationales.
7:43 AM PT:
Baker does not resolve our own case but it
does limit the arguments to ones that do not presume or rest
on a constitutional right to same-sex marriage.
7:44 AM PT: The court is denying rational basis, but also heightened scrutiny!
Under such a rational basis standard, the Gill plaintiffs cannot prevail.
7:45 AM PT:
extending intermediate scrutiny to
sexual preference classifications is not a step open to us.
7:46 AM PT:
Nothing indicates that the Supreme
Court is about to adopt this new suspect classification when
it conspicuously failed to do so in Romer--a case that could
readily have been disposed by such a demarche.
7:49 AM PT:
In a set of equal protection decisions, the
Supreme Court has now several times struck down state or
local enactments without invoking any suspect
classification.
7:53 AM PT:
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to exclude from the food stamp program households containing unrelated individuals.
7:54 AM PT: Here it is:
the Court closely scrutinized the legislation's fit--finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a "bare congressional desire to harm a politically unpopular group."
7:55 AM PT: Ah, just as with the Ninth Circuit's decision in Perry, using Romer:
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado's constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling "unprecedented" the
"disqualification of a class of persons from the right to seek specific protection from the law," deemed the provision a "status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests."
7:57 AM PT: And using Lawrence
All three of the cited cases--Moreno, City of Cleburne and Romer--stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.
7:59 AM PT:
Moreno, like this case, involved meaningful economic benefits; City of Cleburne involved the opportunity to secure housing; Romer, the chance to secure equal protection of the laws on the same terms as other groups. Loss of survivor's social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on "compelling" or "important" justifications or "narrow tailoring," the Court would scrutinize with care the purported bases for the legislation.
8:01 AM PT:
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.
8:02 AM PT: Good one!
no precedent exists for DOMA's sweeping general "federal" definition of marriage for all federal statutes and programs.
8:04 AM PT:
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.
8:05 AM PT:
Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
8:07 AM PT: Zap!
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.
8:09 AM PT: Bam!
This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical... 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.
8:10 AM PT:
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for
section 3 of DOMA.
8:12 AM PT:
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
8:14 AM PT: The end:
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court's stay of its injunctive judgment,
pending further order of this court.