The First Circuit Court of Appeals issued its ruling in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services this morning. To the surprise of absolutely no one, a unanimous panel found section 3 of the Federal Defense of Marriage Act unconstitutional in violation of the Equal Protection Clause.
More interesting is the strong Tenth Amendment reasoning relied upon by the First Circuit. Based on the reasoning placing heavy emphasis on the “historic role of the states in defining marriage,” it appears that states that have enacted SSM bans into their statutory laws or constitutions are free to continue doing so. As yet unlitigated (at this level) are cross-boundary validity cases.
Enforcement of the order is stayed pending denial of certiorari by the U.S. Supreme Court. (I hasten to add, just after publishing — I doubt certiorari will be denied, so that means enforcement will be stayed until and unless SCOTUS affirms.)
