Defense of Marriage Act Is Struck Down, Kinda

Photo: Reuters / David McNew

A Boston-based federal appeals court has declared that the Defense of Marriage Act is unconstitutional.

The three-judge panel, two of whom are Republican appointees, supported a lower court ruling that struck down part of DOMA in 2010.

Before my gay friends rush to their local courthouse for marriage licenses (and before my gay-friendly friends order those wedding gifts), you must look a little closer at the court's decision. This ruling doesn't legalize same sex marriage, it simply declares that the 1996 law enacted by Congress (and signed by President Clinton) defining marriage as a union "between one man and one woman" is not consistent with the U.S. Constitution. 

This is good news, for sure, but the rationale behind the ruling is a bit troubling. Here is the most salient segment of the court's decision.

"[M]any 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. One virtue of federalism is that it permits diversity of governance based on local choice...this applies as well to the states that have chosen to legalize same-sex marriage."

In essence, the Court of Appeals declared DOMA to be unconstitutional, not on the grounds that it unfairly discriminates against gays and lesbians, but because it violates the Tenth Amendment of the Constitution, which guarantees individual states the right to determine legal questions, when the issues involved are not expressly within the jurisdiction of the federal government. 

In other words, today's ruling is a big step forward, but the logic used to declare DOMA unconstitutional relates to the protection of the basic rights of states in our federal system, not to the fundamental equality of gay and lesbians citizens.

For now, each individual state still gets to decide whether it will allow same-sex couples to marry, which is very likely the same ruling justices on the Supreme Court will make when this issue finally reaches them. In the end, I don't disagree with gay journalist Andrew Sullivan who believes the "federalist" strategy that allows each state to legislate same-sex marriage may ultimately be the best approach.