DOMA Done?

As you probably have already read, the First Circuit came out with their decison on the Defense of Marriage Act yesterday, upholding the district court's ruling finding Section 3 of DOMA unconstitutional.  A link to the decision is here.  []  A link to the amicus brief we filed supporting the plaintiffs' claims of unconstituitonality is here.  [Download 2011-11-03 Brief of Amici Curiae Historians]  Because the ruling relates only to section 3, it does not address that portion of DOMA indicating that states need not recognize other states' same-sex marriages.  Hence, this decision only covers the need of the federal government to respect states' defintions of marriage; it does not say that a state must allow same-sex marriages.    

Kudos to Maura Healey of the Massachusetts AG's office and Mary Bonauto of GLAD who argued the case,  with Paul Clement on the other side (paid for – in the millions - with your tax dollars, as I have blogged on before.  I'm sure we will all be paying more into the kitty for him to argue, again contrary to the DOJ's position, at the Supreme Court.)

Judge Boudin wrote this decision (with CJ Lynch and Judge Torruella rounding out the panel), and yes, I know it's my side, so I'm going to like it, but it's really a tremendous piece of work.  The way he navigated through all the issues is really, in a word that's been used about him before, brilliant.  The discussion about the impact of federalism on the analysis is particularly interesting.

Our brief, filed on behalf of many family law professors throughout the nation, gave an historical overview as to how marriage has been treated in the U.S. since the country's founding, and I learned a lot in the process (thanks to PA-ites Cliff Ruprecht and Katy Rand and ex-PA-ite Frank Bishop for doing a lot of the heavy lifting with, of course, the professors, lead by Nancy Cott.)

The longstanding understanding that the states define marriage, not the federal government, is shown, among other ways, by the fact that, historically, every time someone wanted to create a federal definition (which was often), they understood they needed to amend the Constitution to do it (until DOMA).  Another interesting point I learned was the stark divergence among the states always as to how they defined marriage.  The current controversey about whether people of the same sex can get married is really just one disagreement in a long line of differing views about what marriage is and who can be married. 

And finally, because this blog, is after all, all about me, how appropriate for the First Circuit to decide this case this week.  June 6 I celebrate my 25th wedding anniversary.  Let's hope that not just I, but everyone who wants one, has many wedding anniversaries to come.

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