General Articles

Federal Court of Appeals Rules DOMA Unconstitutional

In Boston on May 31, 2012, the U.S. Court of Appeals for the First Circuit ruled unanimously that a central provision of the Defense of Marriage Act (DOMA) was unconstitutional. The case against DOMA was brought forth by the Gay and Lesbian Advocates and Defenders (GLAD) who argued against the House Republicans’ Bipartisan Legal Advisory Group (BLAG), and won. It was the first time that a federal appeals court had ruled the law unconstitutional.[1]

DOMA was signed into law in 1996 under the Clinton administration with strong majorities in both chambers of Congress. The law barred the federal government from conferring upon those who enter into a same-sex marriage “all federal protections, responsibilities, and benefits that accompany any other marriage in America” and “for the first time…claimed for the federal government the power to give states permission to ignore the lawful marriages performed in other states.”[2] While DOMA does not technically invalidate same-sex marriages in states where it is legal, it does affect the application of roughly one thousand references to marriage in federal laws, most of which adversely affect same-sex married couples.[3] Marriages for same-sex couples are currently legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont.

The court ruled against section three of DOMA which prohibits same-sex couples from receiving the same federal benefits that heterosexual couples receive. Section three forbids same-sex couples from filing joint federal tax returns and excludes same-sex couples from collecting Social Security survivor benefits and federal employees’ health insurance. While the court left intact the provision that states not be required to recognize same-sex marriages performed in other states, and furthermore did not state that same-sex marriage is a constitutional right, the panel did dismiss many of the popular defenses of DOMA.[4]

Circuit Judge Michael Boudin authored the opinion for the court and wrote that statements made by defendants of DOMA were directly contradicted by the court’s own analysis. Defendants claim that the government would lose money in lost tax revenue if same-sex couples received the same benefits as heterosexual couples. In contrast, the court discovered that DOMA is actually responsible for producing a net cost to the government. The panel also rejected the notion that denying benefits to same-sex couples would reinforce traditional marriage, or that DOMA’s treatment of same-sex couples was in any way connected to its “asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”[5] Lastly, the court negated the legitimacy of a moral defense of DOMA. Judge Boudin transcribed a section of DOMA, which explicitly states moral disapproval of homosexuality as one of its justifications—

“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”[6]

The court ruling referred to the Department of Justice’s own revised position which found section three of DOMA unconstitutional on July 8, 2010 under the Equal Protection Clause. The Equal Protection Clause of the 14th amendment of the U.S. Constitution “prohibits states from denying any person within its jurisdiction the equal protection of the laws” and is intended to prevent discrimination.[7] The rulings made by both the Department of Justice and the court of appeals were based on the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.”[8]

This case was also groundbreaking in that the panel chose to weave “the issue of states’ rights into its equal protection analysis.”[9] The panel stated, “[g]iven that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.” The court concluded that “no precedent exists for DOMA’s sweeping general “federal” definition of marriage for all federal statutes and programs.” By arguing that DOMA interferes with state regulation of marriage, the opponents of DOMA hope that their claims will resonate with conservative defendants of DOMA who typically champion state rights. However, taking a federalist slant may also hurt the long-term goal of many Lesbian Gay Bisexual Transgender Queer (LGBTQ) rights activists who want to establish same-sex marriage as a constitutional right.[10]

The three-judge panel, composed of two Republican appointees and one Democratic appointee, believes a Supreme Court review of DOMA is necessary and extremely likely. After their win, GLAD wrote that the “battle isn’t over,” but they “are prepared to fight until [their] victory is secured.”[11] Their decision affects only those same-sex couples within their circuit: Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.[12]

Click here to view all May 2012 Policy Updates

1 “DOMA Challenge Moves Toward Supreme Court,” Advocate, 31 May 2012, accessed 5 June 2012,
2 “President Obama and Congress Make Headway in the Battle for Marriage Equality,” SIECUS, 12 March 2011, accessed 5 June 2012,
3 Gill et al. v. Office of Personnel Management et al., U.S. Court of Appeals for the First Circuit (2012), accessed 5June 2012,
4 “Defense of Marriage Act unconstitutional, federal appeals court declares,” The Washington Post, 31 May 2012, accessed 5 June 2012,
5 Gill et al. v. Office of Personnel Management et al., U.S. Court of Appeals for the First Circuit (2012), accessed 5June 2012,
6 Ibid.
7 “Equal Protection: An Overview,” Cornell University Law School, 19 August 2010, accessed 5 June 2012,
8 Gill et al. v. Office of Personnel Management et al., U.S. Court of Appeals for the First Circuit (2012), accessed 5June 2012,
9 “Same-sex marriage case looms for Supreme Court,” Reuters, 4 June 2012, accessed 5 June 2012,
10 Ibid.
11 “ U.S. First Circuit Appeals Court Unanimously Rules DOMA Unconstitutional,” Gay & Lesbian Advocates & Defenders, 31 May 2012, accessed 6 June 2012,
12 “Defense of Marriage Act Unconstitutional, 1st Circuit Rules,” Reuters, 31 May 2012, accessed 5 June 2012,