5 The First Circuit has suggested in dicta that
6 recognition of a new suspect classification in this context
7 would “imply[] an overruling of Baker.” See Massachusetts,
8 682 F.3d at 9. We disagree for two reasons that the First
9 Circuit did not discuss. First, when it comes to marriage,
10 legitimate regulatory interests of a state differ from those
11 of the federal government. Regulation of marriage is “an
12 area that has long been regarded as a virtually exclusive
13 province of the States.” Sosna v. Iowa, 419 U.S. 393, 404
14 (1975). It has for very long been settled that “[t]he
15 State . . . has [the] absolute right to prescribe the
16 conditions upon which the marriage relation between its own
17 citizens shall be created, and the causes for which it may
18 be dissolved.” Pennoyer v. Neff, 95 U.S. 714, 734-35
19 (187, overruled on other grounds by Shaffer v. Heitner,
20 433 U.S. 186 (1977). Therefore, our heightened scrutiny
21 analysis of DOMA’s marital classification under federal law
22 is distinct from the analysis necessary to determine whether
23 the marital classification of a state would survive such
24 scrutiny.20
1 Second, the Supreme Court’s decision to apply rational
2 basis review in Romer does not imply to us a refusal to
3 recognize homosexuals as a quasi-suspect class. See
4 Massachusetts, 682 F.3d at 9. The litigants in Romer had
5 abandoned their quasi-suspect argument after the trial court
6 decision. See Romer, 517 U.S. at 640 n.1 (Scalia, J.,
7 dissenting). We are satisfied, for these reasons, that
8 Baker has no bearing on this case.


So again, the decision as a whole was essentially federalist, not a ruling that states must allow gay marriage.