Court Rules Against Part Of Marriage Act

A federal appeals court ruled Thursday that part of the federal Defense of Marriage Act discriminates by denying federal benefits to gay married couples. The case is likely to end up being decided by the Supreme Court.

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In a unanimous ruling, a federal appeals court has struck down part of the Defense of Marriage Act. The First Circuit Court of Appeals, in Boston, ruled the 1996 law unconstitutional because it denies giving gay couples the same rights afforded to heterosexual couples. As NPR's Barbara Bradley Hagerty reports, the ruling sets the stage for a potential battle at the U.S. Supreme Court.

BARBARA BRADLEY HAGERTY, BYLINE: Herbert Burtis waited more than a half-century before marrying his partner, John Ferris, in 2004, the year that Massachusetts recognized same-sex marriage. Ferris died four years ago, and when Burtis went to the Social Security office to apply for survivor benefits, he was told he didn't qualify. The federal government did not recognize his marriage.

HERBERT BURTIS: And you think, well, what's the matter with me, you know? I'm a citizen. I'm of age. I pay my taxes, you know, so why are you discriminating against me?

HAGERTY: Burtis, along with several couples, sued, arguing that the Defense of Marriage Act - or DOMA - is unconstitutional because it creates two classes of married couples - heterosexual couples, who get federal benefits; and gay couples, who don't. A federal judge agreed with them in 2010 and now, the federal appeals court has as well. Burtis says he no longer feels like a second-class citizen.

BURTIS: I feel like a first-class-minus-a- little-bit citizen. I feel much, much better about the future.

HAGERTY: The three-judge panel found that the federal law errs in two ways. First, it targets a group that has been historically disadvantaged. And while the ruling did not say homosexuality is protected in the same way as race or even gender, it did say gay men and lesbians cannot be discriminated against in this way.

Second, it said the federal law intrudes on a state's ability to define marriage. What this means, says Janson Wu, a staff attorney at Gay and Lesbian Advocates and Defenders, is that if the ruling stands, married gay couples will have the same federal benefits and responsibilities as other couples.

JANSON WU: Leave to take care of your sick spouse; federal health-insurance benefits; Social Security survivor benefits; the ability to file your taxes jointly - bread-and-butter issues that make a big difference in real people's lives.

HAGERTY: But gay couples will have to wait. The ruling won't go into effect until it can be appealed, most likely to the U.S. Supreme Court. Which will certainly happen, says Dale Showengert, an attorney at the conservative Alliance Defense Fund. He says the legislatures in the states and Congress are the ones to decide what a legal marriage looks like.

DALE SHOWENGERT: Marriage is a particularly important social institution, and so any watershed change in its definition should come through the legislative process - and not the courts.

HAGERTY: Showengert says that generally, courts give deferential treatment to the laws of Congress, and the First Circuit failed to do that.

SHOWENGERT: And I think that was a significant legal error, and one that we anticipate the Supreme Court will remedy. And we believe the decision will be overturned.

HAGERTY: But other legal experts say this is not a fire-breathing decision that cries out for a Supreme Court smackdown.

IRA LUPU: I think the opinion is very careful. I think it's very creative. I think it's very clever.

HAGERTY: Ira Lupu is a constitutional scholar at George Washington University. He notes that two of the three judges were appointed by Republican presidents, and that the panel seems to be treading carefully. Lupu says the judges say nothing about whether same-sex couples have a right to marry, or be recognized, in every state.

LUPU: They wanted to write an opinion that said DOMA was unconstitutional. But the grounds for that does not necessarily mean that every state that refuses to recognize same-sex marriage is acting unconstitutionally.

HAGERTY: It's not clear when the U.S. Supreme Court might consider the legality of DOMA, but many scholars believe it will be sooner rather than later.

Barbara Bradley Hagerty, NPR News.

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