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Just 16 years after DOMA's passage, striking it down can be seen as conservative

Posted by Carol Rose, On Liberty  May 31, 2012 08:28 PM

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ACLU of Massachusetts Legal Director Matthew R. Segal wrote this guest blog.

A federal appeals court in Boston ruled today in Gill v. Office of Personnel Management that the Defense of Marriage Act is unconstitutional because it denies married same-sex couples the same federal benefits available to opposite-sex married couples. The unanimous 3-0 decision by the United States Court of Appeals for the First Circuit represents the first time a federal appeals court has struck down DOMA. This is wonderful news--particularly for same-sex couples married in Massachusetts--because it rules that all married couples must receive the same federal benefits regardless of sexual orientation.

Although Gill is the first decision of its kind, its reasoning is painstakingly narrow. Rather than make sweeping statements about the rights of gay people, the opinion relies on the quite accurate observation that Congress's rationales for passing DOMA don't make much sense. For example, lawyers defending DOMA--including appellate litigation superstar Paul Clement--had argued that DOMA protected traditional marriage and supported child-rearing between opposite-sex couples. A more liberal court might accurately have rejected those arguments on the ground that they rely on prejudice, rather than evidence. But the First Circuit's decision did not go there.

Instead, the court simply pointed out that, in states like Massachusetts, DOMA does not actually stop married same-sex couples from raising children. So even if discouraging same-sex parenting were a good idea--though it isn't--DOMA would not help. Similarly, the court noted that DOMA does not provide any benefit to opposite-sex couples. Thus, rather than complain about discrimination against gay men and lesbians, the court ruled that DOMA cannot survive because it does not do anything for heterosexuals.

The court's matter-of-fact reasoning will advance equal rights for all citizens precisely because it is so, well, mundane. If the court had said that DOMA is immoral, its decision could more easily have been branded as taking one side in America's culture wars. But because the court relied only on the absence of a logical fit between DOMA's aims and its operation, it is hard to imagine that other appellate courts will disagree with the decision, or that the Supreme Court will reverse it.

If DOMA indeed goes down quietly, its death will show just how far the gay-rights movement has come in a short period of time. When DOMA was passed in 1996 and signed by President Clinton--a Democrat--it was a response to what was viewed as the liberal Hawaii Supreme Court, which in 1993 had suggested that denying marriage licenses to same-sex couples might violate the Hawaii constitution. Now, just 16 years later--in terms of legal history, that is the blink of an eye--a decision striking down DOMA might be seen as conservative.

But the First Circuit's conservative rationale also shows that there is still more work to be done before gay and straight people will be truly equal in the eyes of the law. The court's opinion declines to say that gay relationships deserve just as much respect as heterosexual relationships. And even though a House Committee report conceded that one of DOMA's purposes was to defend "traditional notions of morality," the court's opinion declines to "rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality." On the contrary, it suggests that some opponents of same-sex marriage simply have a well-intentioned commitment to "traditional" marriage.

Those aspects of the court's opinion are cause for concern. Although the DOMA case did not require the First Circuit to decide whether bans on same-sex marriage violate the federal constitution, cases that do raise that question--including a decision striking down California's ban on same-sex marriage--will wend their way toward the Supreme Court.

Thus, at some point, courts will have to decide whether there really is some good reason to disfavor marriage and child-rearing by same-sex couples. And until the courts give the correct answer--a resounding no--there will be more work to do for those who believe in equality under the law.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. A lawyer and journalist, Carol has spent her career working for and writing about human rights and civil liberties, both in the United States and abroad. More »

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