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.

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2 Responses

  1. Joe says:

    I agree it’s a good opinion but disagree that the 9th Cir. was “slapdash” though we will have to respectively disagree on the latter.

    The 9th Cir. in part rested on rational basis with bite, which seems to confuse even some law professors in some ways (general statement there), and it’s good that it clearly stated this concept that the USSC has used in recent years.

    The federalism section (which the judge below used too to some eyebrow raising) is to me nifty really & even convincing but its really no more crafty than what the 9th Cir. did. Kennedy in Lopez might have agreed that ‘traditional state functions’ should cause courts to be more dubious in cases of this type, but it requires applying dicta in various cases to get there.

  2. Kent says:

    While, in this case, it took the court until the second sentence to show their cards, I still think the general rule, that you can usually tell the outcome of a decision by the first sentence, holds true.

    The second sentence reads: “the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.”