Federal Appellate Court Declares DOMA Unconstitutional: Analysis of the Ruling

LynchChief Judge Sandra Lynch (the first woman to serve on the First Circuit and a Clinton appointee – pictured, right), Michael Boudin (a George H. W. Bush appointee), and Juan Torruella (a Puerto Rican jurist appointed by President Reagan) all agreed that DOMA violates the Equal Protection Clause. President Obama and many gay rights scholars wanted the court to come to that conclusion by using "heightened scrutiny," or a form of judicial review that would invalidate most laws. Heightened scrutiny requires a law have a substantial connection to an important government interest. The alternative — "rational basis review" — would affirm most laws because all a law's proponents would need to show is some rational connection to a legitimate government interest. Legitimate interests abound, important motives are harder to come by (as is a stronger connection between the law and the goal).

The First Circuit chose the Solomonic path, splitting the difference between rational basis and heightened scrutiny, choosing what we teach in law school as "rational basis plus."

The Court found that it was foreclosed from declaring that heightened scrutiny was the appropriate standard of review because a different three-judge panel of the same court had said that rational basis was the right standard (Cook v. Gates, 2008). Cook was a case about the long-gone "Don't Ask, Don't Tell" policy, but the constitutional challenge to that law required the court to determine the proper standard of review for laws that discriminated on the basis of sexual orientation. In a classic example of respect for precedent and judicial modesty, the Gill panel refused to challenge its predecessor panel despite ample rationale to do so. For one thing, in Cook, the Bush Administration argued that rational basis was appropriate; in Gill, President Obama — through my accomplished friend Stuart Delery at the DOJ — made air-tight arguments for the need for heightened scrutiny. 

In any event, rational basis plus is somewhere between the lowest, highly permissive standard of review that courts generally give economic legislation and the strict heightened standard of review. It comes from a trilogy of Supreme Court cases – U.S. Department of Agriculture v. Moreno (1973), City of Cleberne v. Cleberne Living Center (1986), and Romer v. Evans (1996) — that found that where a law is aimed at a traditionally unpopular or disadvantaged group, though not a group traditionally given strict scrutiny (i.e., racial, religious, alienage minorities), courts have to use a more searching form of review than they give to your everyday law.

SealBy adopting this in-between standard, the First Circuit may have denied us the heightened scrutiny we deserve, but it did at least one important thing: it destroyed the underlying rationale of Judge Randy Smith's dissent in Perry v. Brown. Judge Smith refused to find Prop 8 unconstitutional because he thought the public's good faith, yet misguided reliance on lies and false science still qualified as a rational connection to the various stated government interests. Assuming that tortured logic is even correct, it is only possible under the most permissive rational basis standard. And, the First Circuit has said definitively that such a standard has been foreclosed by the Supreme Court in cases involving historically disadvantaged groups. 

The court also found that the federalism concerns counseled in favor of this more searching form of review. If you recall, Judge Tauro also declared DOMA unconstitutional under the Tenth Amendment: Congressional intrusion into marriage law, an area traditionally and exclusively reserved to the States, marked an overreach of federal power. The First Circuit declined to go that far. The court recognized that marriage law falls under the state umbrella, but Congress certainly has an interest in what the states define as a marriage. After all, that is what Gill is about, that is, the various interests, in the form of federal benefits, that the federal government has in marriage. What's more, the Supreme Court has made clear that federal laws only violate the Tenth Amendment where Congress sought to commandeer state governments or dictate the internal operations of a state. Since DOMA still allows states to recognize marriages for gay couples, DOMA does not run afoul of the Tenth Amendment.

However, DOMA does burden states. In the Gill companion case, Massachusetts argued that DOMA could force it to lose Medicaid funding if it recognized same-sex spouses for Medicaid purposes, thus either imposing huge financial burdens on the state or forcing them to break state law and deny marriage recognition to gay couples. The First Circuit simply says that these burdens do not violate the Tenth Amendment, and my reading of the Tenth Amendment cases suggests it is correct. DOMA does not force Massachusetts to do anything directly; it certainly has an impact, but more is needed to run afoul of the Tenth Amendment. That conclusion is also notable as we prepare for a groundbreaking Supreme Court ruling on the Affordable Care Act, one of President Obama's signature legislative achievements. Even though DOMA does not violate the Tenth Amendment, these federalism concerns further support the more searching form of review of rational basis plus.

With this standard, the court dismantles many of the Republican House's arguments in favor of DOMA. A pro-traditional marriage rationale cannot stand because DOMA neither favors opposite-sex marriages nor stops same-sex marriages. Any financial or administrative burdens are either speculative or insufficient to justify discrimination against gay persons. The supposed "best parents" argument falls because DOMA cannot stop gay couples from adopting children. And, per one of the few clear statements of law in Lawrence v. Texas (2003), moral disapproval of homosexuality can never be a legitimate rationale for a law.

But the First Circuit made clear that in declaring DOMA unconstitutional, it was not relying on evidence that DOMA's primary, but hidden rationale was hostility toward homosexuality. After all, Lawrence said that wanting to uphold a traditional institution is not the same as bald hostility to the excluded group. For much of this country's history, tradition and morality had been legitimate bases for laws and only the last few decades has questioned that tradition. So, when it comes to the role of morality and tradition, the First Circuit was aware of the law — Lawrence foreclosed the legitimacy of the morality argument — but it was uneasy. This should give us pause. Blanket statements about morals, family, and tradition have been used by conservatives to bury gay persons under mountains of discriminatory laws; they are also used by pundits and ideologues as rationales for far harsher treatment. Today, many of our legal victories rest on the victories of our predecessors, who exiled conceptions of morality from legitimate justifications for discriminatory laws. If courts are uneasy about that rule, we may have to redouble our efforts to cement our success.

Today's victory brings us one step closer to the final end of DOMA, something the First Circuit admits will have to be left to the Supreme Court. It also shows us the impact that every gay rights decision has on each other, from Gill to Cook to Perry. Each victory bleeds into other areas, breeding victory upon victory. That may be the greatest reason to continue the impact litigation path, blazed by Lambda Legal, Gay and Lesbian Advocates and Defenders, the ACLU, the American Foundation for Equal Rights, and others.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.


  1. Matt says

    Ari – thank you for this summary. And since you seem to be answering questions, may I ask, were the Supreme Court to also rule Section 3 unconstitutional, would this impact immigration equality as well (e.g a foreign partner in married binational couple would be allowed to stay in US)? Thanks!

  2. Steve says

    Ari, quick question, what do you think would be the best timing for the case to go to the Supremes? This session, before the election, after the election, next year and why? Of course, the big elephant is the election and the results of it.

  3. Jeff NYC says

    Thanks, Ari. I come right to Towleroad to read your analyses whenever these events occur.

    I look forward to your column on a successful Supreme Court decision!

  4. Chris says

    Ari, do you think BLAG will go the en banc route, or as I suspect, appeal directly to SCOTUS in an attempt to make this pending case an issue in November?

  5. Chris says

    Ari, second question: Is “rational basis plus” the same standard as is often applied to gender in federal jurisprudence? Is it also known as “intermediate scrutiny”.

  6. says

    @chris: no. what i referred to as heightened scrutiny would be the intermediate scrutiny you refer to. the academy and the judiciary have slowly moved from intermediate to heightened for terminology. rational basis plus is below that, above simple rational basis.

  7. RxR says

    Hi there, I wanted to ask Ari..In reading this decision, which I have been carefully peeling through this morning, an odd choice in language seems to pepper the entire decision, namely the use of the term “preference” with regard to the orientation of homosexual persons. Would you please let me know your thoughts on this, and what if any effect this outdated and glaringly derogatory choice of words within this decision has on the jurisprudence of future court litigation/findings or interpretation? Thank you for the work you do and for your great legal analyses on so many decisions and cases.

  8. BobN says

    Better than it could have been. Not as good as it might have been.

    One has to swim deep in denial to ignore the animus towards gay people exhibited by Congress.

  9. Michaelandfred says

    I agree Bob. It’s so glaringly obvious. On the other hand, it’s gratifying to see these judges still puting the law and the constitution above their own personal opinions, which is the job of these judges and sadly something we are seeing less and less of. You can almost feel the anger portrayed in this splitting of hairs.

    But they did the job we needed. Let’s hope other conservatives do the same. A full marriage equality ruling we might not see, but if they don’t knock down DOMA they will look like they have given up any pretense of actually staying impartial and upholding the constitution.

    Thanks again Ari.

  10. Michaelandfred says

    I agree Bob. It’s so glaringly obvious. On the other hand, it’s gratifying to see these judges still puting the law and the constitution above their own personal opinions, which is the job of these judges and sadly something we are seeing less and less of. You can almost feel the anger portrayed in this splitting of hairs.

    But they did the job we needed. Let’s hope other conservatives do the same. A full marriage equality ruling we might not see, but if they don’t knock down DOMA they will look like they have given up any pretense of actually staying impartial and upholding the constitution.

    Thanks again Ari.

  11. Rich says

    If this decision were to be upheld by the Supreme Court without comment, what happens to couples who marry in one state and then live in another? Would the Federal government be obliged to recognize the valid marriage performed by State 1, or would it be permitted to ignore it on the grounds that the state in which they are now citizens doesn’t recognize it?

  12. Lymis says

    This may be a far larger question than is appropriate in this context, but while it’s clear that if this ruling is eventually upheld, Massachusetts residents married in Massachusetts will get federal marriage benefits, and, say, unmarried same-sex couples in Arkansas or Mississippi won’t.

    But what about Mississippi residents who are married in Massachusetts and return home? It’s clear they won’t be recognized as married in Mississippi by Mississippi, but will the federal government still recognize them for purely federal purposes like federal income tax and social security?

    I know individual states choose whether or not to let people marry, but is your federal marital status dependent on recognition by your state of residence? Or by the state of issuance?

    Second, for those of us who are legally married, would declaring DOMA unconstitutional allow us to refile previous years’ federal taxes?

  13. Jay says

    Apparently, there are only 5 active judges in the First Circuit, so an en banc appeal would make no sense. Clements will no doubt appeal directly to the Supreme Court.

    This decision reached the right conclusion, but it lacks the passion and the sharpness of the Tauro decision. Perhaps Boudin had Roberts in the back of his mind and tailored the decision as something that Roberts might find appealing.

  14. Al in SoCal says

    1. Doesn’t the 9th Circuit also have a DOMA case in front of them – when is that going to be reviewed?

    2. When can we expect this to go to SCOTUS?

  15. anon says

    SCOTUS tends to sit on its hands for years when marriage cases roam around the circuit courts. It might be a while. The Republicans will probably want some action on this before the election though.

  16. candideinnc says

    As I understand it, this is very good news for Massachusetts and other liberal states, and the rest of us will have to suck eggs for 40 or 50 years. States Rights is conservative speak for unfettered bigotry, and this decision does nothing to keep the bigotry in the law. I am far from thrilled.

  17. Bingo says

    The decision was far more artful than Ari allows. You won’t find anything like “rational basis plus” in the text. Boudin made a far more subtle case than standards of review are derived from cases. He has invited SCOTUS to rule in this case without making sweeping declarations or reworking the “rubric”. He also delivered a beautiful lecture on standards of review that teachers of teh subject will find useful.

  18. Bingo says

    LYMIS: I hope you have been filing your taxes as the law today requires, then trying to file an amended joint return and having it rejected. Your ability to file an amended return on the one hand and your ability to claim that your attempt to file a joint return was unjustly denied on the other will affect different past years.

  19. me says

    @candide, that is incorrect. if doma is overturned you may be able to get married in another state and that will have to be recognized by the state you live in. also prop 8’s case will do nothing on the federal level – only doma would. this case is a BFD that will help us win full marriage rights more than anything we have going currently.

  20. Frank OFile says

    If you remember that impact litigation cases are an incremental process, GILL in and of itself does not make marriage available everywhere, but it does set up some interesting situations (e.g., the moving around that has been mentioned in texts above) that will be the obvious basis for some further court challenges. So, Candide, I’m sorry you’re not thrilled. But this was great for LGBT rights. Your day is coming, and GILL will help.

  21. Mark says

    Why does every analysis always talk about Romer Lawerance and/or Loving but exclude CLS vs Martinez? Do you think SCOTUS could send the Prop 8 and DOMA cases back to the district courts and instruct them to use CLS as a basis to come up with their decision? Most decisions have ignored that. Though our side has sited that case as a reason for raising their standard of scrutiny.

  22. Michael Ejercito says

    My observations:

    1. Gill reaffirms that Baker v. Nelson, 409 U.S. 810, 93 s. Ct 37, 34 L.E.2d 65 (1972) (mem) “that the Constitution [does not require] states to permit same-sex marriages, and held, within the context of this challenge, that “it … limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage” slip op. at 12 Thus, a challenge to a state’s marriage laws defining marriage as a “union for life of one man and one woman in the holy estate of matrimony”, Murphy v. Ramsey, 114 U.S. 15 at 45 (1885), arising from a district court in the First Circuit, must fail.
    2. The First Circuit plainly held that DOMA passes rational basis scrutiny. See slip op. at 14 ([u]nder such a rational basis standard, the Gill plaintiffs
    cannot prevail.)
    3. But since the case includes federalism concerns, something more than rational basis is required, even though sexual orientation is not a suspect classification. id. at 11 (governing
    precedents under both heads [equal protection and federalism] combine…to require a closer than usual review based in part on discrepant impact among married couples and in part on
    the importance of state interests in regulating marriage.) Taking the First Circuit at its word, this “closer than usual review” would not be warranted where federalism concerns are absent, such as DOMA’s application to immigration law and U.S. territories.
    4. Congress had required several states to forever prohibit polygamy and plural marriage in their constitutions. See e.g. Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558, cited in Romer v. Evans, 517 U.S. 620 at 648 (…1996) (Scalia, J., dissenting) For some of those states, these provisions were required to be irrevocable. Thus, it was not merely sufficient that the states had to ban polygamy initially, but can never repeal those bans without the consent of Congress.

  23. Michael Ejercito says


    CLS was not an equal protection case. It did not even touch the issues decided in Baker v. Nelson.

    Furthermore, if CLS could be interpreted that classifications on the basis of homosexual conduct are equivalent to classifications on the basis of homosexual status, it does not disturb most of the circuit cases that denied suspect classification to sexual orientation, such as Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) (rejecting equal protection challenge to policy that discharged officers for homosexual conduct) National Gay Task Force v. Board of Education, 729 F.2d 1270 (10th Cir. 1984) (rejecting equal protection challenge to policy that allowed teachers to be fired for engaging in public homosexual activity) this is because these cases treated policies that imposed adverse consequences for homosexual conduct as classifications on homosexuality itself.

    Indeed, in Cook v. Gates, the First Circuit treated the Don’t Ask, Don’t Tell law as a classification based on homosexuality itself, instead of trying to draw a distinction between status and conduct.

  24. says

    @michael: thank you for your learned comments, but you are wrong about the first circuits decision on rational basis. the federalism concerns also counsel in favor of the more searching review. if you read the opinion again, you will see that the court is solidly behind the position that cases like these — where laws discriminate against unpopular groups that arent otherwise racial, etc minorities — gets rational basis plus. that there are federalism concerns counsels further in favor of the plus.

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