Balkinization  

Friday, June 01, 2012

The First Circuit's Cautious DOMA Ruling and the Continuing Importance of Romer v. Evans

Linda McClain


On May 31, the First Circuit  unanimously affirmed the judgment of the Massachusetts federal district court that Section 3 of the Defense of Marriage Act, which provides that, for purposes of federal law, marriage is “only a legal union between one man and one woman as husband and wife,”  is unconstitutional. The opinion is cautious and has an obvious eye on the U.S. Supreme Court, where, it writes, “review of DOMA is highly likely.” The opinion also shows the continuing importance to the same-sex marriage controversy of the Supreme Court’s 1996 precedent, Romer v.  Evans, and, in turn, the precedents on which Romer relied.  These cases played a starring role in the Ninth Circuit’s ruling in Perry v. Brown, in February,  that California’s Proposition 8 violated the federal constitution. The First Circuit, again with an eye on ultimate review of DOMA in the Supreme Court, states: “We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.” Also noteworthy are the court’s disavowal of any reliance on “animus” as a reason for striking down DOMA, its discussion of the relevance of “moral disapproval,”  and its invocation of the value of federalism – and diversity among the states in their approach to marriage – as a factor highlighting DOMA’s infirmity.

Despite the First Circuit’s cautious opinion, authored  by Judge Michael Boudin, a Republican nominated to the bench by President George H.W. Bush, the National Organization for Marriage quickly issued a press release declaring:  “Liberal federal judges in Massachusetts and California have resorted to making up legal standards in order to justify redefining marriage [and] to justify imposing their values on the rest of the nation.”  In hyperbolic rhetoric wholly mismatched with the First Circuit’s actual opinion, NOM charges that the court dismissed “the centuries-old understanding of marriage as a critical social institution that exists for the benefit of couples and their children, and which has served society well for thousands of years.” Like the First Circuit, NOM too has its eye on review by the Supreme Court. Indeed, it demands that “it is time for the Supreme Court to step in and establish once and for all that preserving marriage as the union of one man and one woman is not only completely constitution, it is profoundly in the public good.”

One thing the National Organization for Marriage does get right is that the First Circuit declined to use a traditional “rational basis” test for assessing the constitutionality of Section 3 of DOMA, but instead found that  “intensified scrutiny” (a conclusion with which NOM disagrees).  Why not mere “rational basis”? The First Circuit reads Romer and earlier cases such as U.S. Department of Agriculture v. Moreno (1973) and City of Cleburne v. Cleburne Living Center (1985) to stand for the proposition that, under the Equal Protection clause, something more than the highly deferential rational basis scrutiny accorded “ordinary economic legislation” is required in certain circumstances where minorities with a historical pattern of disadvantage are subject to  “discrepant treatment.” Moreno concluded that excluding certain households from food stamps reflected a “bare congressional desire to harm a politically unpopular group” (e.g., “hippies” living in “hippie communes”), Cleburne, which concerned an ordinance requiring a special permit for operating a group home for persons with mental disabilities, concluded that the interests given for denying the permit were unconvincing; what was left were “mere negative attitudes” and unsubstantiated fears.

Most pertinently, in Romer, where Colorado’s voters enacted a constitutional amendment that prohibited adopting laws to protect homosexuals from discrimination, thus invalidating a number of local laws, the Court observed that the amendment was “unprecedented” in its “disqualification of a class of persons from the right to seek specific protection from the law.”  In language not quoted by the First Circuit, but critical to the Ninth Circuit’s ruling  in the Prop 8 litigation, the Supreme Court stated that, because the constitutional amendment lacked any legitimate purpose, it was left with the “inevitable inference” that “the disadvantage imposed is born of animosity toward the class of persons affected.”

 The First Circuit points out that the Supreme Court decided these three cases without finding that the disadvantaged minorities in each case constituted a “suspect classification,” which would warrant the Court adopting either the highest form of judicial review of the law in question (strict scrutiny) or intermediate scrutiny. Nonetheless, the First Circuit points out that the Court did apply something more searching than rational basis review in its “minimalist” form. So too, the First Circuit concludes that it should review DOMA with “a closer than usual review.” This is so both because of (1) DOMA’s impact on same-sex couples who are lawfully married in their home state but whose marriages are denied recognition by the federal government and (2) the federalism issue at stake: the historic and important role of states in regulating marriage.

 Under this “closer than usual review,” the First Circuit concludes that there was not “any permissible federal interest” to justify Congress’s denial of federal benefits to same-sex couples lawfully married in Massachusetts. The opinion is cautious in simply putting to the side the underlying merits of certain rationales offered by Congress and disputed by the plaintiffs – such as the appeal to “encouraging responsible procreation and child-rearing.” Other courts, including the 9th Circuit, have evaluated those rationales and concluded that they do not justify excluding same-sex couples from marriage. And the Department of Justice itself  has disavowed responsible procreation and optimal child rearing as sufficient rationales for DOMA, citing to empirical studies about child development and reports by leading medical, psychological, and social welfare organizations.

The First Circuit, instead, says that it “need not enter the debate” about “whether or not children raised by opposite-sex marriages are on average better served.” For, whatever the truth of the matter, DOMA has an extremely “poor fit” with such a rationale, since it “cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” The substantive family law of Massachusetts, in other words, already accords gay men and lesbians parental rights and responsibilities. Similarly, the court points out, “Although the House Report [on DOMA] is filled with encomia to heterosexual marriage,” it “does not increase benefits to opposite-sex couples” and it is hardly clear “how denying benefits to same-sex couples will reinforce heterosexual marriage.” Thus, the First Circuit concludes, not only is there a “poor fit” between the supposed remedy to a “perceived problem,” but there is also no “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.”  Instead, DOMA  imposes substantial burdens on same sex spouses and surviving spouses, such as denial of Social Security survivor benefits and  the ability to file joint federal income tax returns.

What commentators may also dwell upon in analyzing the First Circuit’s opinion are, first, its express disavowal of any ruling that DOMA is unconstitutionally infirm because it rested on “animus” against homosexuals and, second,  the court’s treatment of “moral disapproval” as a rationale for DOMA.  The court asserts that the motives of a few legislators cannot “taint” a statute supported by large majorities and signed by President Clinton. Rather, it states that legislators “supported DOMA” for a “a variety of motives,” one central one being to preserve marriage as traditionally defined. This, the First Circuit stated, is “not the same as ‘mere moral disapproval of an excluded group.’”

Nonetheless, as the court acknowledges, Congress did assert “defending traditional notions of morality” as a rationale for DOMA, which, in the words of the House Report, entails both “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” What does the court say about this?   Its discussion again reflects its cautious approach and its anticipation of Supreme Court review. On the one hand, it notes that traditional morality has long served as a sufficient basis for laws and “moral judgments can hardly be avoided in legislation.” On the other hand, the Supreme Court’s rulings in Romer and in Lawrence v. Texas (2003) have “undercut this basis” for legislation.  In a quotable line, the First Circuit observes that, “For 150 years, [the] desire to maintain tradition” – including traditional morality – “would alone have been justification enough for almost any statute.” However, Supreme Court decisions of the last fifty years (including Romer and Lawrence) now call for “closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

Careful and cautious as the First Circuit’s opinion is – the National Organization for Marriage’s charges to the contrary, the bottom line is still highly significant: a federal appellate court has affirmed a federal district court’s ruling that the denial, under Section 3 of  DOMA, of federal economic and other benefits to same-sex couples lawfully married in Massachusetts is unconstitutional.  Moreover, the court does so while acknowledging that “many 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.” Nonetheless, in another quotable line, the court states: “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.” This type of rhetoric about federalism, states’ rights,  and the value of states – as it were – as experimental laboratories may well resonate with the Supreme Court if the First Circuit is correct that the Court is “highly likely” to review DOMA.  

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