Thursday, May 31, 2012
The next controversial issue before the Supreme Court will be same-sex marriage. In an unanimous decision, the 1st Circuit this morning struck down the part of the Defense of Marriage Act that denies benefits to married gay couples. The section struck down states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." The 1st Circuit stayed its decision until the Supreme Court considers the matter.
"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," Judge Michael Boudin wrote for the court. "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." (Quoted in New York Times)
Full decision here.
I wrote an article in 1999 that argued that section 2 of DOMA was unconstitutional because Congress lacked the power to pass it under of effects clause of the Full Faith and Credit Clause. See Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999).