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Anemic DOMA Ruling from the First Circuit

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When you finish reading the most recent Defense of Marriage Act (DOMA) ruling by the United States Court of Appeals for the First Circuit, you feel like a father feels right after his son tells him he was not the one who threw the TV remote in the toilet. You just want to ask, “Are you sure, son?”

The Court found section 3 of DOMA, defining marriage as the union between one man and one woman for federal purposes, unconstitutional.

“This case is difficult. [O]nly the Supreme Court can finally decide this unique case,” wrote poor Judge Michael Boudin. The Court is as sure of its decision as it is that there is life on other planets.

The Court recognizes that DOMA is clearly constitutional under the traditional “rational basis” test. And it acknowledges that legal precedent prevents them from applying the two other stricter tests available, “intermediate” and “strict.” So it ventures to undertake “a more careful assessment of the justification than the light scrutiny offered by conventional rational basis review.”

“Son, no one else was here. Are you sure you didn’t do it?”

You see, the Court is apparently not as careful in its examinations on a regular basis. They don’t always bring their “A” game, if you will. But this time, hey, this time we will take a look at this really carefully.

After all, the Court is under a lot of pressure by the Obama-Holder Department of Justice (DOJ). It made sure to mention that even though the DOJ had defended DOMA in the district court, it made an “about face” to argue against the law’s constitutionality before the appellate court.

There’s no question that President Obama’s “evolving” position on the issue had a significant impact on this decision.

Under that pressure, the Court concluded “without insisting on ‘compelling’ or ‘important’ justifications or ‘narrow tailoring,’ the Court would scrutinize with care the purported bases for the legislation.”

It is equally unsurprising then that in abandoning its regular assessments “without care” it sought to overturn DOMA, and it would get there one way or another.

Despite 200 years of historic support for the traditional definition of marriage and its innumerable benefits for society, and the countless instances of legal precedent acknowledging them, the Court found particularly egregious the fact that “only one day of hearings was held on DOMA.”

It is clear that no amount of evidence would have been enough for the Court and, therefore, it rejects all rationales for DOMA – including the support of children. It matters not that children do best in a home with their mother and father. The Court couldn’t “explain how denying benefits to same-sex couples will reinforce heterosexual marriage.”

It all ringed of, “I didn’t do it, daddy.”

The government does this all the time. It treats certain practices differently, offering benefits to encourage practices that benefit our society. In the case of marriage, it supports it by setting it apart from other types of relationships, therefore making it more likely for children to grow up in what we know is the best environment for them – with a mother and a father who love each other and their children.

It’s most basic. The Court knows it is more than a “rational basis.” It should meet “strict scrutiny” review. Yet it looks at it “really carefully” to reach the outcome the judges personally desire. The law, most certainly, doesn’t demand it.

We have to give them this; the Court’s position is so weak, because it is actually trying to be a bit more honest than other courts. It wrote, “In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.”

It continued, “Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity – not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.”

But in acknowledging that, the Court makes its position as weak as it can be. Other courts have relied on this fictional notion that everyone who supports traditional marriage does so based on some hidden “animus” towards homosexuals, because they know their whole case depends on it. They feel they must be agents of “progress,” and so they are willing to take the leap of faith to avoid being “on the wrong side of history.”

Hopefully this decision at least helps expose that fallacy as it is on its way to be overturned by the Supreme Court.