At first blush, the First Circuit ruling overturning portions of the Defense of Marriage Act (DOMA), those denying “federal benefits to married gay couples”, appears to be on shaky legal ground: “In its unanimous decision, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman deprives gay couples of the rights and privileges granted to heterosexual couples.”
There is no constitutional right to those privileges.
That said, there is the Tenth 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.” Later in the AP article cited above, we read:
The court, the first federal appeals panel to deem the benefits section of the law unconstitutional, agreed with a lower level judge who ruled in 2010 that the law interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.
. . . .
“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,” Judge Michael Boudin wrote for the court. “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.
Emphasis added. Now, while I might quibble with Judge Boudin’s language, he said, “legalize” when he clearly meant “recognize”, he does seem to be on solid Tenth Amendment grounds here.
“The court points out that,” observes Ed Morrissey helping get a the point about the judge’s language, “contra some hysteria among activists, DOMA does not invalidate marriages, but it gives states leeway to disregard marriages performed in other states, and puts the federal government in the position of denying the validity of such marriages”. Indeed. If a state “disregards” a marriage, they just don’t grant it privileges, but it still remains valid — or should — in the eyes of those who define themselves as married.
The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971).
From just having read news reports on the decision — and not having read the decision itself — the court doesn’t seem to have overreacted, limiting its decision to one section of the law. I would be more inclined to support the decision should the panel have relied on the Tenth Amendment in making its decision.
The real question does appear to be whether the federal government can define marriage for the purpose of granting a federal benefit.
As I will not have time today to read the actual decision, I encourage you to keep an eye on Volokh, particularly on my friend Dale Carpenter‘s posts, for expert legal analysis.