On May 31, 2012, the First CircuitCourt of Appeals unanimously struck down Article 3 of the Defense of Marriage Act (DOMA). DOMA was enacted in 1996 in response to the possibility that Hawaii would legalize same gender marriage. Section 2 of DOMA allows individual states to define marriage as restricted to mixed gender marriages and not recognize same gender marriages from other states. Section 3 defines marriage for Federal law as mixed gender marriage. Obviously, the purpose of DOMA is to deny the benefits of marriage to people of the same gender who want to have a life long relationship. The First Circuit only ruled on Article 3 as the case originated from Massachusetts. Massachusetts allows same sex marriages and recognizes such marriages from other states. As a result, the case did not contain a claim that allowed the Court to rule on Article 2.
Our country has a long history of
protecting minorities against the tyranny and oppression from the
rest of society. Starting with protection of the former slaves after
the civil war, our country has protected minorities based on race,
religion, national origin, marital status, handicap, and other
categories. Same gender marriage should receive the same protection
as other minorities. However, Congress, instead of protecting this
minority, choose to single them out to deny them equality under the
While our county has a history of
protecting minorities, it is the Courts who have protected them when
the legislators have persecuted minorities. This is another case
where the Courts must act to protect against the tyranny of Congress.
When a claim is made in a court that
legislation is unconstitutional, the Court examines the law under
long established rules for analyzing the law. The Plaintiffs in this
case claimed that the law denied some people equal protection under
the law. When an equal protection claim is made, the court must
determine if the appropriate standard is the “rational basis”
test or the more enhanced “strict scrutiny” test. Strict
scrutiny is used if the law could impact a “suspect category”.
Suspect categories are classes of people that Congress has declared
are subject to discrimination. These categories include race,
religion, national origin and other categories. However, sexual
preference is not a suspect category. The problem is that sexual
preference should be a suspect category.
My criticism of this case is that they
court's logic is extremely weak. The Court could have ruled that
there was no rational basis for Congress to create this law as the
District Court found. Instead, they ruled that Congress had a
rational basis to prevent a decrease in tax collections by giving
same gender couples the benefit of marriage. They should have ruled
that if Congress acts to persecute a minority by increasing their tax
burden that this was not a rational basis. Congress should protect
minorities, not tax them.
The Court ruled that there is a an
intermediate standard somewhere between rational basis and strict
scrutiny. They found that this intermediate standard mandates that
the law be found unconstitutional. This position weakens the
argument. When this case goes to the Supreme Court, it will be very
easy for the Court to find that the First Circuit ruled incorrectly.
In my opinion, there is no difference
between denying mixed gender couples the benefit of marriage or
denying mixed race couples the benefits of marriage. Every argument
that was used against mixed race couples has been used against mixed
gender couples. Our country is better than this. The Courts should
protect the rights of mixed gender couples to marry in the strongest