A unanimous three-member Federal appeals court panel ruled against one part of the Defense of Marriage Act on Thursday, holding that it unconstitutionally created separate classes of marriage and intruded into state rights in defining marriage.
The decision was made by a diverse panel of judges that included appointees by Reagan, Clinton and George H.W. Bush. The crux of their argument centered on what they considered disabilities in federal law imposed on states and individuals in states that legalize same-sex marriage.
The court did not address the portion of the law known as DOMA that protects states from being required to recognize same-sex marriage cases performed in other states, and it did not find a constitutional right to same-gender marriage.
What it did do was reject the part of the law that prevents the federal government from recognizing legal same-sex marriages for tax and federal benefit purposes, including spouse benefits for federal employees.
The judges acknowledged that their decision is just one stop on the way to the Supreme Court, and noted that it will not take affect until the higher court decides.
Thursday's decision seemed calculated to persuade swing-voting Supreme Court Justice Anthony Kennedy, said William Duncan, director of the Marriage Law Foundation in Lehi, Utah. Duncan notes that the judges followed a line of reasoning pioneered by Kennedy. They cited three key cases — one which Kennedy wrote, and two others he relied on in writing that one.
"The decision is meant to invite the Supreme Court to rule and is really directed to one judge," Duncan said. "Everyone is going to be thinking of what are the types of arguments that appeal to him."
The court argued that "where the distinction is drawn against a historically disadvantaged group and has no other basis," the purposes behind the law demand close consideration.
The court then analyzed the reasoning offered for DOMA in the statute, and found it wanting, said Frederick Gedicks, a constitutional law professor at Brigham Young University. In simple terms, he said, the court used the Equal Protection Clause of the 14th Amendment to argue that DOMA creates two distinct classes of marriage. "And when you impose disproportionate costs on unpopular minorities, a bare appeal to traditional morality is not enough," Gedicks said.
In addition to appealing to Kennedy's impulse on equal protection, the Court also made an appeal to states' rights, another Kennedy pet issue. Here, the court argued that DOMA infringed on the states' power to define marriage by putting "a thumb on the scale" that favors one definition over another.
The Court wrote that "the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, (Massachusetts) stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws." The Court questioned Congress' right to "put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws."
Charles Pierce at Esquire noted the paradox of a majority Republican panel striking down DOMA because it impinged on the authority of the states, both traditionally supported by the GOP. "The court emphasized that its primary objection to DOMA was that it was an unwarranted intrusion by the federal government into an area — the policies regarding civil marriage — that have been traditionally left to the states."
The Court decided that, over time, "DOMA's prohibition has become both increasingly unfair and increasingly unworkable. Its inherent discriminatory effects are no longer tenable," Pierce wrote.
Ed Whelan, writing at National Review, strongly disputed the federalism argument offered by the court. "The definition of marriage for purposes of provisions of federal law is inherently a federal matter," he wrote. "That the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law doesn’t alter that fact."
William Duncan is likewise not convinced that federalism is a valid argument. "I would venture that if a state legalized polygamy, heaven forbid, the courts would not wring their hands and say there is nothing Congress can do to define marriage." According to Duncan, the argument is being made here "only because same-sex marriage is the cause of the moment."
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at [email protected].