Gay Marriage Will Go to the Supreme Court After DOMA Decision

In a ruling that effectively guarantees gay marriage’s trip to the Supreme Court, the First Circuit on Thursday ruled that the 1996 Defense of Marriage Act (DOMA) unconstitutionally denies federal benefits to married gay couples.

The ruling is the first official decision of a federal appellate court on the constitutionality of DOMA and the first decision following the Obama administration’s decision to no longer defend the law in court.

The three judge panel unanimously declared that DOMA’s definition of marriage as between a man and a woman unconstitutionality denied equal protection to legally married gay couples. Citing Supreme Court jurisprudence concerning “patterns of disadvantage suffered by the group adversely affected by the statute,” the panel concluded that “moral disapproval alone cannot justify legislation discriminating” on the basis of homosexuality.

The court was careful to note that “we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality,” stating that “many legislators who supported DOMA acted from a variety of motives.” However, the court found the underlying justifications for the classification of marriage as exclusively between a male and a female to be insufficient to justify the disparate impact at the federal level.

In justifying its conclusion that the federal government had no proper reason to discriminate against homosexual couples in the disbursement of federal benefits the court cited recent Supreme Court jurisprudence requiring “closer scrutiny of government action touching upon minority group interests” as well as “federal action in areas of traditional state concern.”

The court did not reach the question of whether DOMA’s provision allowing states without same-sex marriage laws to ignore same-sex marriages from other states, a question sure to continue in its role as a political firestarter as the case heads up on appeal. Although the issue was not decided by the First Circuit, the Supreme Court can certify the question and address it should they wish to do so.

An invalidation of a law passed by Congress by a federal appellate court effectively requires Supreme Court review and the First Circuit has made clear that its ruling will not be enforced prior to the Supreme Court getting a chance to look it over. A similar case is currently scheduled for oral argument in the Ninth Circuit in early September, the decision of which will also likely be taken into consideration by the Supreme Court.

Partnered with the equally inevitable journey of the lawsuits arising out of California Proposition 8 to the Supreme Court, DOMA litigation is ensuring that 2013 will be a landmark year in terms of Supreme Court jurisprudence concerning gay rights.

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Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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