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Mary Bonauto discusses GLAD's view of same-sex marriage.
On April 4, 2012, oral arguments were presented before a three-judge panel of the United States Court of Appeals for the First Circuit in Boston in two cases challenging the constitutionality of the Defense of Marriage Act, which limits the definition of marriage for federal purposes to heterosexual couples. It is the first time the question of the constitutionality of DOMA has been considered in a federal appeals court.
The cases argued on April 4 are appeals of decisions handed down in July 2010 by U.S. District Judge Joseph Tauro in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services et al. Judge Tauro, a well-respected judge who has served since 1972, declared Section 3 of DOMA unconstitutional in exceptionally thorough and powerfully-written opinions.
Judge Tauro, relying heavily on such Supreme Court rulings as Romer v. Evans and Lawrence v. Texas, ruled that this section violates the Fifth Amendment's equal protection principles and the Tenth Amendment's reservation of unenumerated powers to the states.
In his opinion in the Commonwealth case, Judge Tauro pointed out that the federal government had never before not accepted a state's definition of marriage. He concluded, "This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."
In the Gill case, Judge Tauro found that DOMA was enacted with discriminatory intent. He concluded that even under a deferential "rational standard" review the act could not pass constitutional muster. There is, the judge wrote, "no fairly conceivable set of facts that could ground a rational relationship between DOMA" and a legitimate government interest.
He declared, "where, as here, 'there is no reason to believe that the disadvantaged class is different, in relevant respects' from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."
In the two opinions, Judge Tauro addressed every argument in favor of DOMA advanced by Congress in 1996 and by the Department of Justice in 2009 and found them all implausible and irrational.
After Judge Tauro's decisions, the Department of Justice filed to appeal them in the First Circuit.
Subsequently, however, the DOJ itself reached the conclusion that DOMA is unconstitutional and declined to continue defending it in court.
On February 23, 2011, Attorney General Eric Holder informed Speaker of the House of Representatives John Boehner that President Obama and DOJ had determined that classifications based on sexual orientation like DOMA's Section 3 should be subject to a heightened scrutiny when examined by courts. Under this heightened scrutiny, Holder said, DOMA's federal definition of marriage should be found unconstitutional and, therefore, DOJ would no longer be defending it in court.
Following that decision, the House of Representatives Bipartisan Legal Advisory Group (BLAG), on a 3-2 party-line vote, authorized the defense of DOMA in court challenges.
Consequently, on April 4, Paul Clement, representing BLAG, argued in defense of DOMA, while Stuart Delery, Acting Chief of the Department of Justice's Civil Division, argued that Section 3 of DOMA should be declared unconstitutional.
Mary Bonauto, GLAD's Civil Rights Project Director, argued for the Gill plaintiffs, while Maura Healey, of the Massachusetts' Attorney General's Office, argued on behalf of Massachusetts, that DOMA is unconstitutional.
The Appellate Court judges hearing the cases are Chief Judge Sandra Lynch, who was appointed by President Bill Clinton; Judge Michael Boudin, who was appointed by President George H. W. Bush; and Judge Juan Torruella, who was appointed by President Ronald Reagan.
At the hearing, the panelists listened attentively--with very few interruptions--to arguments from the attorneys.
In her presentation, Bonauto pointed out that the federal government defers to state marriage laws when distributing federal marriage protections and responsibilities. "But for DOMA," she said, "same-sex couples who began marrying here [in Massachusetts] eight years ago would have been included in those federal laws. DOMA's precise point was to prevent that inclusion and create an across the board exclusion in the U.S. Code. The promise of equal protection is that likes are to be treated alike--but DOMA treats married same-sex couples differently from all other married persons making gay people and our marriages unequal to all others."
The biggest news made at the hearing was the statement by Delery that the Obama administration would not defend DOMA on any basis, including under rational basis review.
Delery also maintained that DOMA was enacted out of animus against gay people. He said that the name "DOMA" itself indicates that the law was intended to discriminate against glbtq families.
"It was a defense against something, and that something was same-sex couples," he declared.
Clement mostly echoed the arguments previously put forward by the Department of Justice, supplemented by some National Organization for Marriage talking points about procreation as a basis for marriage.
Healey contended that DOMA violates Massachusetts's right under the Tenth Amendment to regulate marriage. She said an end to DOMA would return the federal government to "what it always has done" by recognizing state authority on which couples should be able to marry.
Healey also evoked "Don't Ask, Don't Tell" as a reason why the court should overturn DOMA.
"I'll take you to our state veterans cemeteries because here the operations of DOMA really revives the concept of separate but equal," Healy said. "In this day and age, when gay people can now go serve in the military, fight for our country and even die, unlike other married service members, they can't be buried with their spouse on state land in our veterans cemetery. Instead, Massachusetts is essentially required to build on the next hillside over a cemetery for those veterans. We think that's wrong."
As Chief Judge Sandra Lynch said at the close of the hearing--after praising the "superb arguments" delivered by both sides: "We've learned a lot."
For more background on the cases and the arguments presented on April 4, see Chris Geidner's useful guide to the issues in the cases in MetroWeekly. His account of the hearing itself may be found here. Chris Johnson also summarizes the arguments in the Washington Blade.
Other information may be found on GLAD's website.
An audio recording of the arguments presented on April 4 is available on the website of the United States Court of Appeals for the First Circuit, although, due to an equipment malfunction, the first 18 minutes or argument were not captured.
In the video below, Mary Bonauto and Maura Healey discuss the hearing.