For the first time, a federal appellate court — immediately below the Supreme Court — ruled that the Defense of Marriage Act is unconstitutional for prohibiting federal recognition of same-sex marriages that are valid in the states where they are performed. All three judges (appointed by Reagan, Bush, and Clinton) agreed, writing:
"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. 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."
This case will surely go to the Supreme Court and almost certainly get there before Perry, meaning the Court's landmark gay marriage case will not be the one argued by the unbeatable team of Olson and Boies. Writing on the New Yorker's blog, Richard Socarides explains:
"...this is the result favored by the old guard of gay-rights litigators who prefer a more incremental strategy of Supreme Court review. (Although they will not like the language in today’s decision that suggests that states can decide on a case-by-case basis who can get married; but this is the risk of incrementalism.) In this case, a Supreme Court ruling in favor of the plaintiffs would not require any kind of finding that there exists a hitherto-unrecognized constitutional right to same-sex marriage—only that the federal government must recognize marriages validly preformed in states that choose to do so."
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