BOSTON (May 31, 2012) – On Thursday, the First U.S. Circuit Court of Appeals ruled section three of the Defense of Marriage Act (DOMA) unconstitutional, citing a state’s power to determine its own definition of marriage.

Appeals Court Judge Michael Boudin, a President George H.W. Bush appointee, wrote the unanimous opinion for the three-judge panel.

“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

DOMA passed in 1996 during the Clinton administration. Section two of the law stipulates states do not have to recognize same-sex marriages valid in other states, and section three creates a federal definition of marriage.

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The law does not invalidate same-sex marriages in states that allow them, but it does deny same-sex couples federal benefits, such as the ability to file as “married” on tax returns and access to Social Security survivor benefits.

The appellate court ruling dealt with section three.

“No precedent exists for DOMA’s sweeping general ‘federal’ definition of marriage for all federal statutes and programs,” Boudin wrote.

The court based its opinion on the states traditional authority over domestic relations under the Tenth Amendment.

“It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago (Hisquierdo v. Hisquierdo), ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States,’” Boudin wrote.

The ruling was hardly an overwhelming victory for those who support a strict separation of powers between state and federal government under the Tenth Amendment.

“In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded,” Boudin wrote.

Boudin acknowledges that many valid reasons  exist for federal intervention in state marriage law, but in their analysis, the First Circuit judges concludes the justifications for DOMA do not rise to a level allowing the federal government to encroach on what is typically a state power.

“I wouldn’t call this a resounding victory for the Tenth Amendment,” Tenth Amendment Center communications director Mike Maharrey said. “But I am pleased the court at least acknowledged federalism’s place in the U.S. system and recognized the dominant role of states in making their own decisions about things like marriage. While the court leaves the door open for a much greater federal role than the Constitution actually allows, in the big scheme of things, the court ended up making the correct decision. The federal government has no business defining marriage.”

Gay rights activists applauded the decision, but it doesn’t give them complete victory. Boudin points out that the decision also means states retain the right to exclude same-sex unions from their definition of marriage.

“To conclude, 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. 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. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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