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Topics In the News
U.S. Court of Appeals Declares DOMA Unconstitutional
Posted by: Claude J. Summers on 05/31/12
Last updated on: 05/31/12
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Attorney Mary Bonauto at a press conference following the court's decision.

On May 31, 2012, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional in the combined cases Gill v. Office of Personnel Management and Massachusetts v. United States. The decision, authored by Judge Michael Boudin, who was appointed to the bench by President George H. W. Bush, marks the first time DOMA has been declared unconstitutional by a federal appellate court. Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, who was appointed by President Ronald Reagan, joined in Boudin's decision.

The ruling, like the cases themselves, dealt narrowly with the question of federal recognition of same-sex marriage in states where such marriages are legal and with benefits for same-sex couples, not with the legality of same-sex marriage itself. Those benefits range from the right to file joint tax returns to the ability to collect social security survivor benefits.

The decision upholds the opinion of U.S. District Court Judge Joseph Tauro, issued on July 8, 2010, that the federal law defining marriage as consisting of only one man and one woman violates the equal protection clause of the Fifth Amendment. The Court rejected Judge Tauro's holding that DOMA violated the Tenth Amendment, but it evoked the principles of federalism in reaching its decision.

The Court declined to apply "heightened scrutiny" in testing the legislation, but it relied on recent decisions, such as Romer v. Evans, that acknowledged "the historic patterns of disadvantage suffered by the group adversely affected." In those decisions, the Supreme Court, Boudin wrote, "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered."

Applying this standard, which is sometimes described as "rational basis with teeth," the Court concluded: "[M]any 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. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

The decision paid far greater credence than deserved to the argument that Congress was not motivated by hostility to homosexuals when it passed DOMA. It did, however, find that "Several of the reasons given [to justify the rational basis of the legislation] do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."

Acknowledging that "Supreme Court review of DOMA is highly likely," the Court stayed the implementation of its decision pending a likely appeal.

Since the First Circuit is a small circuit, with only five active judges, it is unlikely that an en banc review would be granted. More likely, the defendants will move directly to request that the U.S. Supreme Court hear the case.

Because the Department of Justice, which had defended DOMA at the District Court level in 2010, stopped defending Section 3 of DOMA in February 2011, the Republican-dominated House Bipartisan Legal Advisory Group (BLAG) intervened to defend the law. Representing BLAG, conservative attorney Paul Clement was the sole lawyer defending DOMA in Boston at the oral arguments held on April 4, 2012.

Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) represented the plaintiffs in Gill and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey represented the state of Massachusetts. They were joined in some arguments by DOJ Civil Division Chief Stuart Delery.

In a conference call to reporters, Bonauto described the decision as "crisp, solid and well-reasoned," adding that it was "rooted in the last 50 years of equal protection jurisprudence."

Massachusetts Attorney General Martha Coakley issued a statement in which she said that "Today's landmark ruling makes clear once again that DOMA is a discriminatory law for which there is no justification."

A second DOMA challenge, Golinski v. Office of Personnel Management, is on appeal before the U.S. Court of Appeals for the Ninth Circuit. On May 24, a federal district court in California struck down DOMA in Dragovich v. Department of Treasury, the details of which may be found here. Other challenges are pending in various federal district courts from New York to California.

The decision of the U.S. Court of Appeals for the First Circuit may be read here.

In the video below, from a press conference held after a hearing in the Gill case in 2010, Mary Bonauto discusses the case.

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