His administration last year said it would no longer defend the 1996 law, which limits federal recognition of marriage to those between a man and a woman. The law thus denies a host of federal benefits, such as filing joint tax returns or receiving survivor benefits, to same-sex couples who were married in states that allow such unions.
The decision by a panel made up of judges nominated by presidents Ronald Reagan, George H.W. Bush and Bill Clinton did not address whether the Constitution provides gays and lesbians a fundamental right to marriage. It also did not address a part of DOMA that says states do not have to recognize same-sex marriages performed elsewhere.
Some gay rights activists have said that the limited question in the DOMA case made it a more attractive and incremental issue for an increasingly conservative Supreme Court than asking the justices to recognize a fundamental right of gays to marry.
The case presents only “the question of how the federal government treats people once they are married in their states,” said Mary L. Bonauto, who argued the case for a group called the Gay and Lesbian Advocates and Defenders (GLAD).
“We think this is a very solid decision to go before the Supreme Court.”
The decision by the Obama administration not to defend DOMA — a law that was signed but is now disavowed by Clinton — prompted an angry response from House Republican leaders. They hired Paul D. Clement, who was solicitor general in the administration of George W. Bush, to defend the law in court.
“We have always been clear we expect this matter ultimately to be decided by the Supreme Court, and that has not changed,” Clement said in a statement.
The federal judges said the same. The case “couples issues of equal protection and federalism” with the need to defer to Congress when it shows a rationale for passing a statute, wrote Circuit Judge Michael Boudin, the Bush appointee. There are precedents helpful to each side, he said.
“We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case,” he wrote. The most likely timetable is that the case could reach the justices in the fall, and if they decide to take it, it could be decided next year.
Boudin wrote that the congressional record on why DOMA was needed was sparse, and for 150 years, “the desire to maintain tradition would alone have been justification enough for almost any statute.”
But the Supreme Court, he said, requires Congress to speak with “special clarity” when it affects disadvantaged groups and when the action concerns issues traditionally left to the states, such as marriage.