First Circuit's Bizarre DOMA Ruling Invites Supreme Court Intervention
As most Ricochet readers probably know by now, the First Circuit Court of Appeals made headlines yesterday by ruling that the Defense of Marriage Act is unconstitutional. Whether or not that's actually the case will be resolved only by the Supreme Court, and it won't be on the grounds proffered by the First Circuit.
I have mixed views, because I am in favor of gay marriage as a policy matter, but I think that the First Circuit's decision is based on a seriously flawed rationale that is inconsistent with Supreme Court precedent. I also tend to think that DOMA is constitutional: I was general counsel of the Senate Judiciary Committee when the statute first moved through Congress, and I thought at the time that the law did not violate the Constitution. In fact, I thought then--and continue to think--that DOMA is constitutional because it allows each state to choose for itself whether to allow gay marriage, rather than having the choice made by any individual state for the whole country (which would happen if one state allows gay marriage and those marriages have to be recognized as valid by all other states).
Two points. First, and most importantly, President Obama can now live up to his position on gay marriage. He and I, for once, share the same view: we are for gay marriage, but we want the states to decide. If he truly believes this, he should reverse the position of his Justice Department and order it to defend DOMA (Attorney General Eric Holder, in yet another mistake, has disregarded the traditional DOJ role of defending all federal statutes and refused to represent the United States in court on this one). He can order his Attorney General to ask the Supreme Court to reverse the First Circuit. DOMA itself does not reverse any state's decision to allow gay marriage. Instead, it allows each state to decide for itself--the very working of federalism that Obama purports to favor. I'm not holding my breath, because Obama's position seems to me to arise from political gamesmanship, not principle.
Second, the Court should intervene just to reverse the strange reasoning of the First Circuit. The Supreme Court's gay rights cases have been unprecedented in avoiding the question of whether gays are a class of people entitled to special protection under the Equal Protection Clause. In striking down laws against gay sex, the Court has instead said that such laws lack any rational basis, the lowest form of judicial scrutiny, because they are only the product of bias and animus. In other words, they serve no rational purpose. Since 1937, the Court has almost never struck down any other law on this ground--the most monopolistic, rent-seeking, anti-competitive legislation will survive the rational basis test.
Here, however, the First Circuit didn't find that DOMA failed the rational basis test, but also didn't assert that gays were a protected class under the Equal Protection Clause. Instead, the circuit court appeared to find that some kind of heightened review in between rational basis and higher scrutiny applied--a kind of review that has never emerged from the Supreme Court's cases. Either DOMA fails rational basis, which means there is no rational reason for it, or gays are a protected class--the First Circuit cannot pick and choose from each test as it likes.