1st Circuit, Constitutional Law, Gay, Gay Marriage, Michael Boudin, Paul Clement

Even Paul Clement Can’t Successfully Defend the Defense of Marriage Act

During the United States Supreme Court arguments over Obamacare, the nation got a rare treat: the chance to see (or at least hear) Paul Clement in action. Clement, a former U.S. Solicitor General and current partner at Bancroft PLLC, delivered a brilliant performance before the justices, a veritable master class in appellate advocacy. As Carter Phillips, a veteran SCOTUS litigator himself, told us here at Above the Law, Clement “did a spectacularly good job” and “was just on his game… over a much longer period of time than most of us are required to do it.”

But even Clement couldn’t save Section 3 of the highly problematic Defense of Marriage Act (DOMA) from going down to defeat in the First Circuit. Before a panel with a majority of Republican-appointed judges, in fact.

Let’s find out who was on the panel, whether there were any dissents, and what the court concluded….

Over at Poliglot, the indefatigable and insightful Chris Geidner reports:

Section 3 of the Defense of Marriage Act, the federal definition of “marriage” and “spouse,” is unconstitutional, a federal appeals court in Boston ruled today. The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management and Massachusetts v. United States, is the first instance of a federal appellate court striking down any portion of the 1996 law.

The panel was composed of Judge Juan Torruella, a Reagan appointee; Judge Michael Boudin, a Bush I appointee (and prominent feeder judge); and Chief Judge Sandra Lea Lynch, a Clinton appointee (with a reputation for brilliance but also judicial diva tendencies). The opinion was written by Judge Boudin.

Geidner pulls out this key language from the opinion:

[M]any 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.

Accordingly, the panel affirmed the decision of Judge Joseph L. Tauro (a Nixon appointee to the District of Massachusetts bench). But the First Circuit stayed implementation of the ruling, noting that “only the Supreme Court can finally decide this unique case.”

One ATL reader, an LGBT litigator, provided us with this interesting evaluation of Judge Boudin’s opinion:

I heart the Boudin opinion. It is so wacky. “Here’s a totally new form of rational basis review that I just made up!” Also, Federalism-based heightened scrutiny. He’s sort of off in his own little Equal Protection/Federalism world.

But it’s not weak reasoning; it’s just distinctively conservative. And honestly, that’s not a bad thing. Other than everything that comes out of Ted Olson’s mouth, this might be the most conservative pro-gay argument we’ve seen to date.

Liberals and conservatives can agree: DOMA is a bad law.

But will the nine liberal conservatives over at One First Street agree? Especially when the silver-tongued Paul Clement appears before them to defend this discriminatory statute? [FN1]

Stay tuned. In the meantime, you can read more about the case via the links below. And you can check out the opinion for yourself over here.

[FN1] Whether you support or oppose DOMA, the statute does discriminate. You may think the discriminations are constitutional or unconstitutional, but their existence can’t be denied.

DOMA’s Federal Definition of Marriage Unconstitutional, Federal Appeals Court Rules [Poliglot / Metro Weekly]
BREAKING: Two Republican Judges Declare DOMA Unconstitutional [ThinkProgress via Andrew Sullivan / The Daily Beast]
Gill v. Office of Personnel Management [U.S. Court of Appeals for the First Circuit]
Massachusetts v. U.S. Department of Health & Human Services [U.S. Court of Appeals for the First Circuit]

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