The winds of change are blowing in Massachusetts, and depending on what nine robed figures eventually decide, they may just sweep across the entire nation.
In a unanimous decision yesterday, a three-judge panel of the 1st Circuit ruled that the 1996 Defense of Marriage Act (DOMA), which denies federal recognition to same-sex marriages and prevents same-sex couples who married under state laws from receiving federal benefits, is discriminatory and deprives them of their constitutional rights.
However, the court did not pass judgment on some of the law’s more controversial provisions, such as whether states that don’t allow same-sex marriages can be forced to recognize gay marriages from states where it is legal. The 1st Circuit also did not address whether same-sex couples have a constitutional right to marry.
The 1st Circuit’s opinion, penned by Judge Michael Boudin, says that the Supreme Court’s precedents limit the federal government’s ability to take action against historically disadvantaged or unpopular groups, such as gays and lesbians. And DOMA has imposed “serious adverse consequences” on them.
Judge Boudin wrote that the justifications offered for the law—"defending and nurturing the institution of traditional, heterosexual marriage" and "traditional notions of morality," among others—were insufficient to justify the discriminatory treatment of same-sex couples.
Prior to DOMA’s passage, the power to define marriage was left to the states.
"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 Boudin wrote. "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."
Currently, just six states (Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont) and the District of Columbia allow same-sex marriages. Maryland and Washington also have approved gay marriage, but their laws are not yet in effect and may be subject to referendums. Conversely, 39 states have passed laws to restrict marriage to heterosexual couples.
In addition to yesterday’s decision, the high court also likely will rule on another prominent case considering the same issues. In February, the 9th Circuit upheld Federal District Judge Vaughn Walker’s August 2010 decision to strike down Proposition 8, a 2008 California ballot initiative overturning a California Supreme Court decision that legalized gay marriage, in a 2-1 vote. Supporters of the measure have asked a full 9th Circuit panel to review the case.
The question of federal benefits could have implications for employers. The Family and Medical Leave Act (FMLA), for instance, does not currently cover employees who take time off to care for their same-sex partners (though it does cover leave to care for the children of same sex-partners). Additionally, same-sex partners of federal employees do not receive the health insurance that would be granted to heterosexual married couples.
Bob Dylan’s words, while referring to an entirely different political turmoil nearly 50 years ago, are perhaps apropos given the current pitch of the debate and the way the winds of change seem to be blowing:
Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’
It’ll soon shake your windows and rattle your walls
For the times they are a-changin’
For more from InsideCounsel on marriage equality, read: