Proposed Oregon Initiative Would Exempt Objecting Businesses From Involvement In Same-Sex Unions

The Oregonian reported that this week that a group known as Friends of Religious Freedom have filed a proposed initiative measure (full text) with the Oregon Secretary of State. It is designed to protect private individuals and businesses that have deeply held religious objections from being required to furnish goods, facilities or services for same-sex weddings or civil unions. Last February, the Oregon Attorney General's office opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage. (See prior posting.)  The proposed initiative responds to this and to similar applications of anti-discrimination laws elsewhere.  It provides that no individual or business entity acting in a nongovernmental capacity may be penalized by the state or a political subdivision, or subjected to a civil action:

for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

In a related development, last July supporters of same-sex marriage in Oregon filed with the Oregon Secretary of State a proposed Right to Marry and Religious Protection Initiative (full text). Supporters are currently seeking the 116,284 signatures necessary to get the proposed constitutional amendment on the ballot. Their website says they now have over 115,000 signatures. [Thanks to Alliance Alert for the lead.]

Top Ten Religious Liberty and Church-State Developments of 2015

Each year in December I attempt to pick the most important church-state and religious liberty developments of the past year.  This year was rich with possibilities, and some of my picks actually arose in a broader context but have will have an important impact on religious liberty claims or church-state challenges.  So here are my Top Ten picks.  I welcome readers' comments since I am sure that not everyone will agree with all the choices.

1. In Obergefell v. Hodges, the U.S. Supreme Court holds that the Constitution requires marriage equality, striking down state laws that bar same-sex marriages.
   
   
2. The battle continues over the adequacy of the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act contraceptive coverage mandate. The U.S. Supreme Court will decide the issue this term after granting certiorari in seven cases.
   
   
3. Some states expand RFRA laws to protect objectors to same-sex marriage. Indiana's law provokes particular controversy forcing the legislature to backtrack. Meanwhile around the country some Christian-owned businesses continue to refuse to provide services they see as furthering same sex marriage or LGBT rights, while Kentucky county clerk Kim Davis garners national attention for her refusal to issue same-sex marriage licenses.
   
   
4. The U.S. Supreme Court becomes active on prisoners' rights issues, including claims for religious accommodation by inmates.  The Supreme Court gives RLUIPA a broad interpretation in Holt v. Hobbs.  It also interprets the "three strikes" provision that limits indigent prisoner litigation; hears oral arguments in a case on maximum fee payments by indigent prisoners litigating multiple cases; and grants certiorari on a question of exhausting administrative remedies before suing.
   
   
5. The rise of ISIL creates questions about the proper label to apply to the struggle against jihadists.  The dispute centers over the use of terminology such as "the war against radical Islam" that could be misinterpreted to suggest the U.S. is broadly at war with all Muslims.
   
   
6. The Supreme Court interprets the elements of Title VII employment discrimination claims (including claims for accommodation of religious practices) in Abercrombie & Fitch (employer motives) and Mach Mining (EEOC conciliation requirement).
   
   
7. The expression of virulent anti-Muslim sentiment raises free speech and anti-discrimination issues in cases involving anti-Muslim bus ads and a business seeking to create a "Muslim free zone."
   
   
8. The EEOC rules that discrimination on basis of sexual orientation is barred by the "sex discrimination" ban in Title VII of the 1964 Civil Rights Act.
   
   
9. The Supreme Court holds that specialty license plates  are government speech, thus impacting the many cases on license plates with religious themes or symbols.
   
   
10. The successful referendum to overturn Houston's Equal Rights Ordinance positions the battle over transgender rights as next struggle between conservative religious groups and civil rights advocates.

North Carolina Magistrates Sue Over Requirement They Perform Same-Sex Marriages

Yesterday in North Carolina, a magistrate and a former magistrate (who had not been reappointed after 10 years of service) filed suit challenging a memorandum issued by the Administrative Office of the Courts in October requiring all magistrates to conduct same-sex marriage ceremonies in the same manner as any other marriage ceremony.  The memorandum was issued to implement federal court rulings striking down the state's same-sex marriage ban.  The complaint (full text) in Smoak v. Smith, (NC Super. Ct., filed 5/21/2015) contends that the failure to make exceptions for magistrates with sincerely held religious beliefs opposed to same-sex marriage violates their conscience, religious liberty, free speech, due process and equal protection rights under the North Carolina Constitution. Liberty Counsel issued a press release on the lawsuit.

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:

Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....

The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.

Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.

One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.

ABC News says that the first same-sex weddings could take place as early as January 9.

Transcripts and Recordings of SCOTUS Arguments In Same-Sex Marriage Cases Are Available

This week the U.S. Supreme Court heard oral arguments in two cases involving same-sex marriage.  The written transcript and audio recording of Tuesday's arguments in Hollingsworth v. Perry, the challenge to California's Proposition 8 are available on the Supreme Court's website. The written transcript and audio recording of Wednesday's arguments in United States v. Windsor, the challenge to the federal Defense of Marriage Act are similarly available. Before arguments began on Tuesday, thousands of demonstrators on both sides of the issues marched and picketed near the Supreme Court. Yahoo! News reports that the National Organization for Marriage, a coalition of ethnically diverse churches from at least 15 states, were among the marchers opposing same-sex marriage.  But those invoking religion demonstrated in favor of marriage equality as well. One carried a sign reading: "Jesus had two dads and he turned out fine."

UPDATE: Oyez and ISCOTUS have created a website with extensive background information on the cases.

Texas Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage

Anticipating the U.S. Supreme Court's upcoming decision on marriage equality, the Texas legislature last week gave final passage and sent to the governor for his signature S.B. No. 2065 (full text) to protect clergy and religious groups who object to same-sex marriage.  The bill provides:

A religious organization, an organization supervised or controlled by or in connection with a religious organization, an individual employed by a religious organization while acting in the scope of that employment, or a clergy or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if the action would cause the organization or individual to violate a sincerely held religious belief.

It goes on to provide that this shields the organization and individuals against civil or criminal claims or governmental denial of benefits. Last Friday's Dallas Morning News, reporting on the legislature's action, also reported that a separate bill designed to impede issuance of same-sex marriage licenses by county clerks will not move ahead this session.

UPDATE: Gov. Greg Abbott signed SB 2065 on June 11. (Austin Standard-Times).

Push In New York For Same-Sex Marriage, Opposed By Catholic Church

In the closing days of the legislative session in New York state, efforts are again under way by Gov. Andrew Cuomo to obtain passage of a bill to legalize same-sex marriage.  The state Senate defeated a same-sex marriage bill in 2009, but now, according to the Wall Street Journal yesterday, several senators have shifted their positions and the measure-- which has apparently not yet been formally introduced-- is only two votes shy of passage. So far only one Republican Senator has publicly pledged to vote in favor of the bill, but (according to AP) others Republican votes would follow if  the legislation contained exemptions so that churches, religious organizations and individuals opposed to gay marriage could not be required to perform or host them. New York's Catholic Archbishop Timothy Dolan has strongly opposed the measure.  In a posting yesterday on the Archdiocese's website, he said:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

But, please, not here! Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.

Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition.

Anti-Gay Westboro Baptist Church Pickets Anti-Gay Marriage Kim Davis

In a move that puzzled some observers, four members of the Kansas-based Westboro Baptist Church yesterday picketed near the Rowan County, Kentucky courthouse.  Westboro, known for its virulent anti-gay rhetoric, was protesting Kim Davis, the Kentucky county clerk who has gained notice for her refusal to issue marriage licenses to same-sex couples. According to the Louisville Courier-Journal, a Westboro spokesperson Shirley Phelps-Roper said that Westboro objected to the fact that Davis is divorced and remarried.  Phelps-Roper said:

This woman wants to say that her sin isn’t as grievous as the same-sex marriage sin.  It’s all sin. It’s all awful. But her sin enabled that sin. When you look up, and all the Christians have given over the moral high ground, what voice do they have left?

She also argued that Kim Davis should nevertheless follow the law and issue marriage licenses to same-sex couples, saying: "God hates oath breakers just like he hates adultery and he hates same-sex marriage."

Minnesota Trial Court Upholds State's Ban on Same-Sex Marriage

On Monday, a Hennepin County, Minnesota state court judge rejected a constitutional challenge to Minnesota's law that bars same-sex marriage. Tuesday's Minneapolis Star Tribune reports that the trial court relied on a 1971 Minnesota Supreme Court decision-- Baker v. Nelson -- which rejected a similar challenge, and also relied on Minnesota's Defense of Marriage Act. The case decided this week was brought by three same-sex couples who had been denied marriage licenses. It claimed that denial of marriage to same-sex couples violated their due process, equal protection, religious freedom and free association rights.

D.C. Catholic Archdiocese Threatens To End Social Services Over Gay Marriage Bill

In Washington, DC, the Catholic Archdiocese is threatening to end the social service programs it operates under contract with the city if City Council does not include broader religious exemptions in the same-sex marriage bill that it will vote on next month. In a press release issued on Tuesday, after the Council's Committee on Public Safety and the Judiciary voted to narrow the language on exemptions for religious organizations, the Archdiocese said:

Under the bill, religious organizations do not have to participate in the "solemnization or celebration" of a same-sex marriage ceremony. An earlier version of the bill also exempted them from "the promotion of marriage that is in violation of the entity’s religious beliefs." The revised language significantly narrows that exemption to the "promotion of marriage through religious programs, counseling, courses, or retreats."

As a result, religious organizations and individuals are at risk of legal action for refusing to promote and support same-sex marriages in a host of settings where it would compromise their religious beliefs. This includes employee benefits, adoption services and even the use of a church hall for non-wedding events for same-sex married couples. Religious organizations such as Catholic Charities could be denied licenses or certification by the government, denied the right to offer adoption and foster care services, or no longer be able to partner with the city to provide social services for the needy.

The Washington Post this morning says that Catholic Charities serves 68,000 people in the District, including one-third of the homeless, who go to city-owned shelters managed by the Church. From 2006 to 2008, the Catholic Church received $8.2 million in city contracts, and supplemented city social service funding with $10 million per year of its own funds. Jane G. Belford, chancellor of the Washington Archdiocese, told City Council that: "All of those services will be adversely impacted if the exemption language remains so narrow." However, City Councilman David A. Catania said he would rather end the city's relationship with Catholic charities than give in to the Church's demands. [Thanks to both Steven H. Sholk and Scott Mange for the lead.]

3 Senior Faculty Attack Notre Dame's Granting of Benefits To Same-Sex Couples

Three senior faculty members at the University of Notre Dame earlier this week published an interesting attack on the decision by Notre Dame University and some other Catholic institutions to grant same-sex couples who are legally married the same employee benefits available to married heterosexual couples.  The statement (full text) by law professors Gerard V. Bradley and John Finnis and political science professor Daniel Philpott, published on the blog site Public Discourse, says in part:

[W]hen a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy....

The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it....

[B]y extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children....

Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws.

[Thanks to Mirror of Justice for the lead.]

Pennsylvania County Issues Same-Sex Marriage Licenses Despite State Law Ban

AP reports that in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, has begun to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state.  Hanes says he wants to come down "on the right side of history and the law." At least 5 same-sex couples were issued marriage license yesterday.  The county's district attorney says that the marriage licenses are not legal, but that the remedy for issuing an invalid does not include intervention by the district attorney. The state's attorney general has previously said that she will not defend the state's same-sex marriage ban, leaving enforcement to the governor's office.

North Carolina County Official Takes Step To Advance Same-Sex Marriage [Corrected]

In North Carolina, AP reports that Buncombe County Register of Deeds Drew Reisinger said yesterday that he will begin accepting marriage license applications from same-sex couples, but will then merely hold the applications and seek legal advice from state Attorney General Roy Cooper. The county official's statement came just hours after Attorney General Cooper said he personally supports same-sex marriage, but will defend the state's constitutional ban on same-sex marriage in court. [An earlier version of this posting incorrectly referred to South Carolina.]

Virginia Governor Says Same-Sex Married Couples Can Now Adopt

Last week, Virginia's Department of Social Services (at the direction of Governor Terry McAuliffe) issued a Bulletin (full text) to its local offices informing them that court decisions legalizing same-sex marriage mean that now married same-sex couples are eligible to adopt children under Va. Code Sec. 63.2-1225. Same-sex couples in civil unions or domestic partnerships (rather than marriages) are not eligible to adopt. Reporting on the Governor's action, Metro Weekly yesterday said that, according to the ACLU, married same-sex couples with children born before same-sex marriage was legalized on Oct. 6, 2014 should be able to get an amended birth certificate listing both spouses as a legal parent.  A same-sex spouse should now also be able to adopt a spouse's child so long as the child does not have another legal parent.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

Labor Department Recognizes Same-Sex Marriages Under ERISA

On Wednesday, the U.S. Department of Labor issued Technical Release No. 2013-04  providing guidance on applying the Supreme Court's Windsor decision to regulations under ERISA and the Internal Revenue Code relating to employee benefit plans. (News release.) The Technical Release provides in part:

the term "spouse" will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

[Thanks to Alliance Alert for the lead.]

Britain Begins Consultation Process On Same-Sex Civil Marriage

Yesterday, Britain's Home Office launched a Consultation seeking public input on how to provide equal access to civil marriage for same-sex couples. According to the 25-page consultation document (full text), the government's proposals are designed to:

• enable same-sex couples to get married through civil ceremonies.

• retain civil partnerships for same-sex couples, including the ability to have a civil partnership registration on religious premises (on a voluntary basis and retaining the ban on any religious elements forming part of the registration).

• allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.

• make no changes to how religious marriages are solemnized.

Expanding on the issue of religious marriage, the consultation document says:

marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

Annex B of the document sets out specific consultation questions. Interested parties have until June 14 to file responses and comments on the proposals.  BBC News reports on these developments.

Saskatchewan Court Says Marriage Commissioner May Not Refuse To Perform Gay Weddings

In Nichols v. M.J., (Sask. Q.B., July 17, 2009), the Queen's Bench for the Canadian province of Saskatchewan upheld a decision of the province's Human Rights Commission that a government marriage commissioner illegally discriminated against a gay man when the commissioner refused to perform a marriage ceremony for him. The marriage commissioner, Orville Nichols (who is a Baptist), asserted religious objections to performing same-sex marriages. The court, however, rejected his claim, saying:

M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation....

I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect. However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.

Reporting on the decision, the Regina (SK) Leader-Post says that provincial officials will still move ahead with plans to obtain a Court of Appeal ruling on the constitutionality of a proposed law that would exempt marriage commissioners from performing same-sex marriages if they object to doing so for religious reasons. (See prior related posting.)

European Court Holds Italy Gives Inadequate Protection To Same-Sex Couples

In a Chamber judgment in Oliari and Others v. Italy, (ECHR, July 21, 2015), the European Court of Human Rights in a Chamber judgment awarded damages to three same-sex couples whose relationships were not adequately protected by Italian law.  While the award was unanimous, 3 concurring judges thought that the case could be decided on narrower grounds than did the 4-judge majority opinion.  The Court's press release describes the majority opinion in part as follows:

In previous cases, the Court had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship....

The Court considered that the legal protection currently available in Italy to same-sex couples ... not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. Where registration of same-sex unions with the local authorities was possible – only in a small share of municipalities in Italy – this had merely symbolic value, as it did not confer any rights on same-sex couples. 

As regards the possibility, since December 2013, to enter into “cohabitation agreements”, such contracts were limited in scope. They failed to provide for some basic needs ... such as mutual material support, maintenance obligations and inheritance rights. The fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that those agreements did not primarily aim to protect couples. Furthermore, such a contract required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.

Among the authorities cited by the majority was the U.S. Supreme Court's recent Obergefell decision. A Chamber judgment may be appealed to the Grand Chamber. Frontiers Media reporting on the decision points out that Italy is the only major Western European country that does not provide either civil partnerships or same-sex marriage.

1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, 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.

CNN reports on the decision.