The First Circuit Invalidates Part of DOMA
The opinion by Judge Boudin is here. A few things to note:
1. The First Circuit makes a heroic effort to explain what the “rational basis with bite” standard means any why portions of DOMA flunk that test. Judge Boudin also suggests a few times that this case gives the Supreme Court a chance to straighten out the jurisprudence in this area if it so chooses.
2. The Court’s relies in part on the idea that greater scrutiny must be given (under the Commerce Clause) to federal statutes that regulate areas of traditional state concern like marriage. This gives the Supreme Court a way of striking down part of DOMA without reaching the equal protection issue.
3. In relation to point #2, the Court notes that DOMA is devoid of any factual findings by Congress, which also resonates with Lopez.
4. The contrast between the excellence of this opinion and the slapdash quality of the Ninth Circuit’s ruling on same-sex marriage is stark. Sure, they involve different issues, but still.