Gay rights advocates secured another milestone victory on Thursday, when the US Court of Appeals for the First Circuit unanimously declared unconstitutional a federal law denying benefits to same-sex married couples that are otherwise available to opposite-sex married couples. This is the first federal law ever declared unconstitutional by an appellate court for discriminating against gays and lesbians, and it’s almost certainly headed for the Supreme Court. That’s a scary destination for any progressive legal claim these days, but for a variety of reasons, this case is a much better vehicle for gay rights advocates and the Supreme Court alike than the constitutional challenge to California’s ban on same-sex marriage, which the US Court of Appeals for the Ninth Circuit declared unconstitutional in February. Which case gets to the Court first may be a matter of luck. The Ninth Circuit decision is now awaiting a decision on a request for en banc review by a larger panel of that court, and will not be ripe for a petition for Supreme Court review until the Ninth Circuit resolves the en banc request. The First Circuit case, by contrast, could go directly to the Supreme Court. That’s good news for all concerned.
The law struck down in Massachusetts v. U.S. Dep’t of Health and Human Services, the Defense of Marriage Act, or DOMA, was enacted in the wake of a 1993 Hawaii Supreme Court decision declaring that Hawaii’s denial of marriage to same-sex couples might be unconstitutional. In a panic, Congress in short order and by large majorities passed DOMA, which among other things denies federal tax and Social Security benefits to same-sex married couples, reserving those benefits for marriages between a man and a woman, even where states recognize same-sex marriage on equal footing with opposite-sex marriage.
The challengers to the law maintain that it impermissibly discriminates on the basis of sexual orientation, and interferes with a realm traditionally reserved to the states—family law and the definition of marriage. The federal government initially defended the law, but, under President Obama, switched sides and argued that it is unconstitutional. Republican members of the House of Representatives, represented by former Solicitor General Paul Clement, intervened to defend the law. A unanimous panel comprised of judges appointed by Presidents Clinton, Reagan and George H.W. Bush, in a moderate, carefully reasoned and restrained opinion, found that the law did indeed violate equal protection.
The Justice Department and the plaintiffs had argued that because it discriminated on the basis of sexual orientation, the law should be subjected to more skeptical scrutiny than laws drawing other kinds of distinctions. The statute’s defenders maintained that it need only satisfy “rational basis” review, a highly deferential standard that upholds any law as to which one can imagine any rational justification.