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Q&A: The DOMA decision & what it means
Posted on Jun 1, 2012 | by Michael Foust

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NASHVILLE, Tenn. (BP) -- When the First Circuit Court of Appeals struck down a major part of the Defense of Marriage Act in a unanimous ruling, it boosted the hopes of gay groups that the federal government soon could be forced to recognize same-sex marriage.

The May 31 decision -- the first of its kind by an appeals court -- also means the Supreme Court could hear a gay marriage case as soon as this fall or winter.

Passed in 1996, the Defense of Marriage Act has two sections. One section -- the one struck down by the court -- defines marriage at the federal level as between a man and a woman. The other section protects states from being forced to recognize gay marriage. The First Circuit was not asked to address the section on states' rights, and it left it untouched.

Baptist Press asked Dale Schowengerdt, legal counsel for the Alliance Defense Fund, to answer some legal questions about the case. Following is a partial transcript:

BAPTIST PRESS: Where does the case go from there?

DALE SCHOWENGERDT: It goes either directly to the Supreme Court or it could go to the entire First Circuit Court of Appeals, which is called an en banc review. The most likely situation here is directly to the Supreme Court.

BP: Who decides that?

SCHOWENGERDT: The House of Representatives' attorneys (who are defending DOMA) will decide it.

BP: Is this case the only DOMA case at the appeals court stage right now?

SCHOWENGERDT: It's the furthest along. There's one other case at the Ninth Circuit (appeals court). It's on an expedited schedule, and so they are going to have oral arguments in September. It's still a ways behind this one.

BP: When do you think a case concerning the Defense of Marriage Act will end up before the Supreme Court?

SCHOWENGERDT: If the House decides to go straight to the Supreme Court, they have 90 days to file that petition. (A request for the Supreme Court to take the case) could be at the court's doorstep at least within 90 days.

BP: Could it be heard this year?

SCHOWENGERDT: Yes, presumably during the next term, which starts in October.

BP: Gay groups say it's wrong for the federal government to deny legal benefits to a gay couple when marriage is recognized within the state. Why are they wrong?

SCHOWENGERDT: This is our system of dual federalism. Federalism is a two-way street, and it doesn't make any sense to say that the federal government is held hostage to whatever definition of marriage individual states want to come up with. Congress has its own policy goals, and it can advance those goals through laws like DOMA.

BP: You've previously said the federal government is within its rights to define marriage because that precedent was set in the 1800s with polygamy. Explain what you mean.

SCHOWENGERDT: The federal government required as a condition of statehood that Utah prohibit polygamy, and so it defined marriage at the federal level, which was upheld by the Supreme Court, and therefore it can do it in this instance as well.

BP: And so conversely, you're saying that if a state recognized polygamy, that according to the logic of the First Circuit, the federal government would be forced to recognize that relationship, as well.

SCHOWENGERDT: That's right. Given the logic of the First Circuit's decision, if a state recognizes polygamy, then the federal government is held hostage to that definition and has to give benefits to polygamists.

BP: Some gay news websites said that while the First Circuit ruling was a victory for their side, it wasn't the slam dunk they were hoping for. Specifically, they were referencing the fact that the court did not use strict scrutiny to review the case. Explain what they mean.

SCHOWENGERDT: The court acknowledged that the Supreme Court has had the opportunity to apply strict scrutiny to (cases concerning gays and lesbians) and has declined -- most recently in the Romer v. Evans and Lawrence v. Texas decisions. The First Circuit followed that precedent and didn't apply strict scrutiny.

BP: What is strict scrutiny?

SCHOWENGERDT: Strict scrutiny is applied to very specific categories, namely race and sex, which means that a law is presumptively unconstitutional if it makes distinctions on that basis. Eleven of the 13 courts of appeal have addressed the issue, and all 11 have held that strict scrutiny for sexual orientation doesn't apply. In general, though, laws made by Congress get what's called a rational basis review. Rational basis says that if there's any rational reason that the legislature could make the distinction (between straight and gay couples), then the law stands. And most courts have said it's rational for a legislature to believe that children do best with a mother and a father and the state has particular interests in defining marriage between a man and a woman.

BP: What standard did the court apply?

SCHOWENGERDT: It applied what I call rational basis on steroids. It said that heightened scrutiny didn't apply but normal rational basis scrutiny didn't apply either. It was a very novel approach.

BP: The First Circuit's decision did not overturn the section of DOMA that give states leverage in defining marriage. Did the First Circuit address states' rights on this issue?

SCHOWENGERDT: It did, and this shows the incoherence in the logic of the decision. It did recognize that many states define marriage as the union of a man and a woman. The logic of the court's decision would suggest that those states are well within their right to do that.
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Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp). Read Glenn Stanton's column, "Why not legalize gay marriage?" at www.bpnews.net/BPnews.asp?ID=37494.
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