Case Comment, Massachusetts v. United States Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012)

9 Pages Posted: 31 May 2018

Date Written: 2012

Abstract

Since 2004, when Massachusetts became the first state to legalize same-sex marriage, over one hundred thousand same-sex couples have married in the United States. The federal government does not recognize these marriages, however, due to section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for federal purposes as “a legal union between one man and one woman as husband and wife.” Recently, in Massachusetts v. United States Department of Health & Human Services, the First Circuit held that section 3 violates the equal protection principles of the Fifth Amendment. Notably, the court did not base its holding on the “rigid categorical rubrics” of rational basis or intermediate scrutiny, but instead applied what it called “intensified scrutiny” to DOMA’s justifications. The First Circuit explained that such scrutiny — consistent with a preexisting form of review called rational basis with a “bite” — is more contextually sensitive than the “abstract categorizations” of typical equal protection analysis, as it takes a broad view of a law’s harms rather than focusing on the fit between the law and an appropriate purpose. Though the First Circuit did not clarify whether it conceived of its scrutiny as a complement to or replacement for traditional scrutiny, courts would do well to interpret its analysis as a welcome alternative to the rigid three-tiered equal protection inquiry.

Suggested Citation

Bowie, Nikolas, Case Comment, Massachusetts v. United States Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012) (2012). 126 Harv. L. Rev. 611 (2012), Available at SSRN: https://ssrn.com/abstract=3107785

Nikolas Bowie (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Griswold 406
Cambridge, MA 02138
United States

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