DOMA Struck Down By GOP-Appointed Judges, Ctd

Some initial reaction from readers:

While it is awesome that, for the first time, a federal appeals court has ruled that DOMA is unconstitutional, and we should all be very excited, this ruling is not stirring. In fact, it is highly problematic.

If you read it, the first word that comes to mind is reluctant. It essentially praises legislators who voted for DOMA because of tradition. It says that Baker v. Nelson – a 40-year-old summary order from the Supreme Court – dooms marriage litigation like the Proposition 8 case by Olson and Boies. It says that DOMA has a rational basis (though the court applies a slightly different level). It basically endorses states banning gay marriage, and it says it won't even consider whether laws that target gays and lesbians should receive the same type of skeptical scrutiny that laws targeting women do (let alone the even higher amount of skepticism faced by laws targeting racial minorities), because that would probably result in federal marriage litigation succeeding in other states (it says this even though it doesn't have to reach the issue because of prior circuit precedent).

Don't get me wrong, there are good lines in the decision, and we should be ecstatic at the bottom line, which is that DOMA is unconstitutional. This guarantees that the Supreme Court will decide the question (which would be by no means certain if it had upheld DOMA). However, this precedent is bad for other gay rights cases. If the Supreme Court were to write this same decision, we would never have nationwide marriage equality and it would doom the Proposition 8 case. So while we celebrate today, we should hope and pray that the Supreme Court strikes DOMA down in a "better" way, if you will.

I like the reluctance on the broader issue. It makes the narrower ruling more persuasive. Another reader:

Having read the ruling over a few times I can't help but feel that this ruling throws Perry v. Schwarznegger (Prop 8) under the bus. Judge Boudin specifically repudiates any equal protection challenge to a right to gay marriage in deciding this case. Instead focusing on the equal protection and 10th Amendment challenges to DOMA through the lens of states that have already adopted same sex marriage. In doing so, he offers the court and especially Justice Kennedy an easy out. Under this ruling the court can now easily strike down DOMA and make gay marriages a state rights issue, which I suspect is their inclination already, without having to make the more sweeping ruling that prohibition of gay marriage by state or federal government would always be unconsituitional which is essentially what Perry would have required. Allowing Justice Kennedy to protect his legacy without having to do anything bold which would be par for the course.

And this may be where I dissent from the marriage equality movement leadership. I am at peace with the kind of federalist approach in this ruling, rather than a much more ambitious attempt at a federal equal protection ruling, striking down marriage bans everywhere on Boies-Olson lines. I don't see a problem in focusing entirely on states' rights, in allowing this process to take its time, before we try to force a consensus on the constitutionality of bans on same-sex marriage per se. It may well be that in a few years' time, as the federalist approach continues, more and more people will see the state bans on marriage equality to be unconstitutional at a federal level, and a future Supreme Court would rule that way. But the means in this movement matter as well as the ends. And defending states' rights to determine this issue for the foreseeable future is, to my mind, the better route.

But, then, remember, I'm a conservative on this. And always have been.