BOSTON, MASSACHUSETTS, May 31, 2012, ( – A federal court ruled part of the Defense of Marriage Act (DOMA) unconstitutional today in a decision critics called illogical and extreme, setting up another battle over the definition of marriage at the U.S. Supreme Court.

A three-judge panel of the First Circuit Court of Appeals in Boston struck down the law’s definition of marriage as a union between one man and one woman for the federal government. That provision kept homosexual couples from receiving tax breaks and certain federal benefits such as Social Security survivor payments reserved for married couples. The court ruled the national government must grant such federal benefits to same-sex partners in the eight states that recognize such unions.

The decision upheld the right of each state to define marriage as it sees fit and denied DOMA was inspired by lawmakers’ “hostility to homosexuality.” Yet the judges ruled by refusing benefits, the federal government violated the principles of federalism and imposed its definition of marriage on the states.

Harry Mihet, senior counsel for Liberty Counsel, told the panel “said the right to marry a person of the same sex is not necessarily a fundamental right and that states remain free to decide the meaning of marriage for themselves and to ban homosexual ‘marriage,’ as 31 states have already done. but somehow the federal government does not have that same freedom to decide for itself…what marriage means.”


The decision is “absolutely illogical” and “another example of a results-driven, outcome-oriented decision wherein a court decides the result it wants to arrive at and simply makes whatever illogical leaps are necessary to get there,” he said.

President Barack Obama sent word through his spokesman, Jay Carney, that the decision was “in concert with the president’s views.”

“It’s obvious that the federal courts on both coasts are intent on imposing their liberal, elitist views of marriage on the American people,” said Brian Brown, president of the National Organization for Marriage (NOM). 

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Supporters of marriage say the court’s federalism concern is backwards. “A state cannot dictate the kind of benefits the federal government must provide,” Mat Staver, founder and chairman of Liberty Counsel, said in a statement e-mailed to “This decision is the proverbial tail wagging the dog.”

Alliance Defense Fund Legal Counsel Dale Schowengerdt said the “federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition, as well.”

Judge Michael Boudin wrote in the unanimous decision, “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.”

Mihet said the government encouraged traditional marriage in “recognition of the fact that it is the best possible environment in which to rear children and have a healthy and happy society.”

“That interest would be sufficient to surpass any type of scrutiny that the courts might apply,” Mihet said, “but this court doesn’t see it that way.”

Conservative legal experts also objected to the court’s decision-making process. The judges acknowledged if they had used the typical level of judicial scrutiny in formulating their opinion, the “plaintiffs cannot prevail.”

Bruce Hausknecht, judicial analyst for CitizenLink, the policy arm of Focus on the Family, said, “The Court began by recognizing that this case would fail under the usual tests that courts apply to these cases, and then proceeded to invent a new test by which the federal DOMA failed.” That jurisprudence is “an unfortunate exercise of judicial tampering with the rules by which constitutional cases are decided.”

Tony Perkins, president of the Family Research Council, which filed an amicus brief in the case, said in a statement e-mailed to LifeSiteNews, “FRC has always argued that DOMA should be reviewed under a level of scrutiny lawyers refer to as the ‘rational basis test’…We believe the Supreme Court will agree with us in applying the rational basis test and uphold DOMA.”

The Defense of Marriage Act passed Congress by lopsided margins in 1996, when it appeared the state of Hawaii would legalize same-sex “marriage,” forcing other states to recognize such unions. The law passed the House of Representatives (342-67) and the U.S. Senate (85-14) before being signed by President Bill Clinton in 1996. Judge Boudin, who was appointed by President George H.W. Bush, said the lawmakers intended “to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.” (The other two judges, Juan Torruella and Sandra Lynch, were appointed by Ronald Reagan and Bill Clinton, respectively.)

The legal case took a circuitous route to the circuit court. The case ended in limbo for a time when the Obama Justice Department abruptly dropped its defense of DOMA. Republican House Speaker John Boehner formed the Bipartisan Legal Advisory Group to defend the law. Former Speaker Nancy Pelosi, on the other hand, led 130 other Congressional Democrats in filing an amicus curiae brief against DOMA.

The panel stayed its decision on the grounds that “Supreme Court review of DOMA is highly likely.”

The defendants can now appeal to the full, six-judge First Circuit Appeals Court or go directly to the Supreme Court.

The First Circuit is “one of the most liberal courts in the country, next to the Ninth Circuit in terms of how often they are wrong and reversed by the Supreme Court,” Mihet told LifeSiteNews. “That is why we have the Supreme Court in place, to reconcile these errant courts and bring them back into the American mainstream, both politically and judicially.”




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