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Religious Tolerance logo

Attempts to have the federal "Defense of
marriage act" (DOMA) ruled unconstitutional

2012-MAY-NOV: Analysis of 1st U.S. Court of
unanimous ruling in "Gill" case.
Case appealed to U.S. Supreme Court

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This story is a continuation of the previous essay

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About the Court of Appeals' unanimous ruling in the "Gill" case, finding DOMA unconstitutional:

The criteria used by courts in determining constitutionality of DOMA are always an important component of any ruling. As we explain elsewhere on this site there are two legal terms involved:

"The term 'scrutiny' is a concept that is sometimes used to determining a law's constitutionality. Any law that affects a person's fundamental rights or that classifies people into groups receives one of the following three levels of scrutiny:

  • 'Rational basis,' which is the lowest level of scrutiny.

  • 'Intermediate scrutiny (a.k.a. exacting scrutiny and heightened scrutiny); and

  • 'Strict scrutiny,' which is the most rigorous level.

'Rational basis' is the default level. This level of scrutiny is met whenever the government's action under the law can be shown to be rationally related to a legitimate government interest. However, it normally does not apply in those cases where a 'suspect classification' or 'quasi-suspect classification' is involved, or when a fundamental human right is involved.

A 'suspect classification' refers to a group that is likely to be discriminated against. There is no specific criteria that must be met to achieve this classification, although various criteria have been used by courts in the past:

  • The group has actually been discriminated against and/or been subject to prejudice, hostility, gay bashing, verbal attacks, and/or stigma.

  • They have an immutable trait -- like gender -- and/or a highly visible trait -- like race. Most would agree that a homosexual or bisexual is not a highly visible trait, like skin color. However, Americans differ on whether they consider sexual orientation is fixed in adulthood or changeable. Religious conservatives tend to think that it is chosen and changeable; the LGBT community, religious liberals, secularists, psychiatric and psychological professional organizations generally believe that it is unchosen and fixed.

  • The group is a numerically small minority and the group's distinguishing characteristics do not prevent it from contributing meaningfully to society. Again people differ. Many religious conservatives suggest that only about 2% of the population is gay or lesbian; some LGBT groups claim that 10% is more accurate. The group that sponsores this web site suggests about 5%. More details.

Unfortunately, the U.S. Supreme Court (SCOTUS) has not given a clear indication about which level of scrutiny should be applied. Some supporters of LGBT equality push for strict or intermediate scrutiny in cases involving discrimination based on sexual orientation. According to Metro Weekly:

"In the absence of heightened form of scrutiny, courts traditionally seek only a rational basis to uphold the validity of a law. Looking at a series of cases that 'stressed the historic patterns of disadvantage suffered by the group adversely affected' -- most recently, the Romer v. Evans challenge to Colorado's anti-gay Amendment 2 -- the court noted another route: ' These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.'

Applying this standard -- sometimes called 'rational basis with teeth' -- the court held that none of the potential reasons for upholding Section 3 of DOMA passed constitutional muster. ..."

"After examining the potential justifications offered by [The Bipartisan Legal Advisory Group] BLAG, the court held, ' Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.'

"[Judge Michael] Boudin did so despite holding that the court 'do[es] not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality'."

"Boudin was joined in the decision by Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, appointed by President Ronald Reagan." 1,2

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The next step is a really big one:

The Bipartisan Legal Advisory Group (BLAG), had to decide which of three options to follow:

  1. Accept the ruling of the District Court and the 1st. U.S. Court of Appeals that Section 3 of DOMA is unconstitutional. That would force the Federal Government to treat all legally married couples equally within the area served by this Court of Appeals: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. That was inconceivable, for two reasons:

    • If there is even a small possibility that DOMA could be found constitutional by the U.S. Supreme Court, then BLAG will undoubtedly proceed. Money is no concern, because BLAG can continue to draw on limitless tax dollars to fight for the preservation of inequality.

    • If BLAG allowed the Court of Appeals' decision to stand, loving committed same-sex married couples in other states would proably be encourgaged to initiate their own lawsuits.

  2. Ask the full Appeals Court to review the decision of their three-judge panel. This is unlikely because there are currently only five active judges on this Appeals Court. With three already having unanimously ruled that DOMA is unconstitutional, the outcome would be almost certain to repeat the panel's decision.

  3. Ask the U.S. Supreme Court (SCOTUS) to hear the case in the hope that it would overturn the Court of Appeals' decision. The Supreme Court can choose to either accept cases for review, or let the lower court's ruling stand.

BLAG chose to appeal the case to SCOTUS.

We speculate that the Court will almost certainly choose to accept the case, hear arguments in early 2012, and will deliver a 5 to 4 decision in mid-2013. Whether the vote will uphold DOMA or declare it unconstitutional is something about which we haven't the foggiest idea.

At one time, SCOTUS was required by law to review all lawsuits in which federal law had been declared unconstitutional. According to The Heritage Network:

"The Court asked Congress to give it the discretion not to hear such cases, while also promising to review them whenever they may arise.  Congress agreed, and the Court has kept its part of the bargain.  The upshot is that this case is headed for the Supreme Court, the Court (almost certainly) will decide to review it, and the Court will issue its decision before it recesses for the summer in 2013." 3

With the future security and finances of so many loving, committed same-sex couples -- and their children -- hanging in the balance, it is a pity that the judicial process cannot proceed at a faster pace.

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Will the U.S. Supreme Court accept the appeal?

As noted elsewhere on this web site, the 2nd. Circuit Court of Appeals had also declared the federal DOMA law to be unconstitutional. This was as a result of a lawsuit Edith Windsor v. United States. It was initiated by Edith Windsor who was legally married to Thea C. Spyer. Thea died and willed their house to Edith. If Thea had been male, Edith would not have had to pay any inheritance taxes. However, because of the federal DOMA law, the IRS billed her over a third of a million dollars. That case is also being appealed to SCOTUS.

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This topic continues with the appeal to the U.S. Supreme Court

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Text of ruling: in "Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, et al. ...," United States Court of Appeals for the First Circuit, 2012-MAY-31, at:
  2. Chris Geidner, "DOMA's Federal Definition of Marriage Unconstitutional, Federal Appeals Court Rules," 2012-MAY-31, at:
  3. Paul J. Larkin, Jr., "Court Strikes Down The Defense of Marriage Act," The Foundry, a Heritage Network blog, 2012-MAY-31, at:
  4. Crosby Burns & Andrew Blotky, "Same-Sex Couples and the Supreme Court: What to Expect in the Coming Weeks," Center for American Progress, 2012-NOV-15, at:

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconst. > Gill > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconst. > Gill > here

Copyright © 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2012-JUN-01
Latest update: 2012-NOV-25.htm
Author: B.A. Robinson

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