"DOMA is Unconstitutional."

I remember defending this one in the classroom, working the Equal Protection argument in a Conflicts of Law class. The professor, who meant well* and iirc, knew a Minnesota lawyer who had testified in Congress as to the amendment's constitutionality, wasn't so sure confident.

Gill was filed last year by Gay & Lesbian Advocates & Defenders, the same group that sued Massachusetts for same-sex marriage and won a huge victory in 2003 in Goodridge. It was brought on behalf of seven same-sex married couples and three survivors of same-sex spouses who applied for, and were denied, various federal benefits to which opposite-sex married couples would have been entitled. The various benefits are described at pp. at 6–14 of the opinion, but are only a few of the 1,138 benefits identified by the U.S. Government Accountability Office that arise from federal law alone.

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples. The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples. Previous state court decisions, like the Goodridge decision in Massachusetts in 2003, have also held that traditional marriage limitations are irrational.

* Remember, this was another Clinton-era compromise like DADT, meant to help gays as best as possible since it wasn't so strongly accepted then that they weren't second-class citizens before the law, and when it was more seen as fair game to play politics with gay rights. The alleged fear in some circles was conservatives attempting to amend the U.S. Constitution.

In 1993, the Hawaii Supreme Court determined--in a decision that was later overruled through a popular referendum--that the state's constitution enshrined a right to same-sex marriage.

Immediately, fears arose that sister states might have to recognize Hawaii's same-sex marriages under Article IV, Section 1, of the Constitution, which commands that "Full Faith and Credit shall be given in each state to the public Acts, Records, and Judicial Proceedings of every other state." The second sentence of that section authorizes Congress to prescribe by general laws the manner in which sister-state acts "shall be proved, and the Effect thereof."

While the meaning of the Full Faith and Credit Clause is anything but clear, the historical practice concerning marriage has been relatively straightforward. As a general rule, states recognize marriages concluded in other states.[3] In all states, however, courts have consistently recognized an exception for out-of-state marriages that violate the strong public policy of the forum state. For example, states will generally refuse to recognize a sister-state marriage where the partners chose that state for the transparent purpose of evading the laws of the state in which they are domiciled. (The point of this rule is to protect against a "race to the bottom," meaning Nevada.) Similarly, the public policy exception has traditionally covered cases of bigamy, polygamy, consanguinity, and, in an earlier age, miscegenation.

When the Hawaii Supreme Court legalized homosexual marriage, it seemed unclear whether the public policy exception would extend to such unions. To avert the possibility that the courts of a single state might drag the entire country into recognizing same-sex marriage, Congress in 1996 enacted the Defense of Marriage Act (DOMA), which provides that no state shall be required to give effect to same-sex marriages recognized in a sister state. (DOMA also provides that for purposes of federal law, "marriage" shall mean exclusively the union of one man and one woman.) The act was passed by overwhelming majorities in both houses and signed into law by President Clinton. Thirty-five states promptly responded by enacting "little DOMAs"--that is, statutes that affirmatively bar state courts from recognizing other states' same-sex marriages.

** Lest you think we celebrate in ignorance...I know this is one federal judge, and predictions from corners like Balkin's*** are it won't stand on appeal, but law is like sports. You go by the call of the last umpire calling the game.

And the logic is sounding more and more sound.

***
Balkin:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not-- and I do not-- Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge-- who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are--is in a very different position than I am.

or, Blah Blah Blah Blah Blah. Respectfully...

There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.