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U.S. appeals court guts DOMA

May 31, 2012 at 11:29 AM   |   Comments

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BOSTON, May 31 (UPI) -- A U.S. appeals court panel in Boston ruled Thursday that the federal Defense of Marriage Act cannot affect gay marriages in states that permit them.

The ruling effectively negates DOMA, but Circuit Judge Michael Boudin, writing for the three-judge panel, acknowledged the case eventually will go to the U.S. Supreme Court and stayed the panel's ruling until the Supreme Court gets a chance to look at it.

"Many 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," Boudin said. "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."

The Obama Justice Department has refused to defend DOMA in court, so the U.S. House has become its main courtroom defender.

Boudin's opinion rejected the major arguments in favor of DOMA.

Defenders said the law was "preserving scarce government resources," but the opinion said "where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction."

Another argument contended the law was designed "to support child-rearing in the context of stable marriage. ... The evidence as to child rearing by same-sex couples is the subject of controversy," the opinion said, "but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners."

The opinion also rejected a defense of the law on moral grounds.

"For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted," the opinion said. "But, speaking directly of same-sex preferences, [the Supreme Court's Texas vs.] Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. Moral judgments can hardly be avoided in legislation, but Lawrence and [the Supreme Court's] Romer [vs. Evans] have undercut this basis."

In 2003, the Supreme Court struck down the Lone Star State's sodomy ban in Lawrence and told the government to get out of the bedroom. In 1996's Romer decision, the high court struck down a voter-enacted amendment that would have banned communities from adopting laws protecting gays from discrimination.

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