9th Circuit in San Francisco will hear similar case in September

by Brian Leubitz

A quick word on the marriage equality front, as today the 1st Cir. in Boston struck down DOMA’s prohibition of federal recognition of marriage unconstitutional. You can read the decision here.

In something that twists judicial “conservatives” into knots, the argument for recognizing marriages performed in Massachusetts is one of “federalism”.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  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.  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. (Decision at p.34])

In other words, this is a state’s rights issue. In Massachusetts and several other states, they have defined marriage to include same sex couples. Who is the federal government to ignore that definition? Judicial restraint and the Supreme Court’s precedent simply do not lead to any other decision than that DOMA is unconstitutional.

The 9th Cir in San Francisco will hear a similar case on DOMA in the fall.  With the Prop 8 case stalled at the 9th Cir., the DOMA cases may arrive at the Supreme Court first. While the issues are substantially different, the Court may choose to deal with the whole marriage equality issue in one term, rather than dragging it out.  However, one thing is certain, an electoral victory, or more optimistically several, would be very helpful when the case comes to the Court. Maine and Washington offer the best opportunity come November, and it may be that we here in California may never have to vote on this issue again.