Oral Arguments on Deck in Historic DOMA Challenge

Oral arguments will be heard Wednesday in Boston for a legal challenge to the Defense of Marriage Act, marking the first time a federal appellate court will consider the constitutionality of the merits of the 1996 law.

A three-judge panel of the U.S. Court of Appeals for the First Circuit will hear arguments in a consolidated appeal of two cases, Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health and Human Services. The cases challenge Section 3 of DOMA, which holds that, “the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

In July 2010, Judge Joseph L. Tauro of the U.S. District Court of Massachusetts, appointed to the bench by President Richard Nixon, ruled that section of DOMA unconstitutional in both cases. Judge Tauro ruled in Gill, a case brought by Gay and Lesbian Advocates and Defenders, that the section violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The judge ruled in Commonwealth of Massachusetts that Section 3 of DOMA violates the Tenth Amendment and the Spending Clause of the Constitution.

The Department of Justice alerted Congress in February 2011 that it had determined heightened scrutiny should apply when evaluating Section 3 of DOMA, and that under this higher standard, the law is unconstitutional, and the department would no longer defend it. The Republican-controlled House opted to continue to defend DOMA through the Bipartisan Legal Advisory Group.

In the hour allotted for arguments on Wednesday morning, the Department of Justice is expected to contend that heightened scrutiny should apply, based on briefs filed with the court. The department disagrees with the states rights’ claim of Massachusetts, however.

“Under the well-established factors set forth by the Supreme Court, discrimination based on sexual orientation merits heightened scrutiny, and under that standard of review, Section 3 violates equal protection principles and is unconstitutional,” wrote the department in a brief filed last December. “Moreover, because it violates equal protection principles, Section 3 exceeds the authority of the Spending Clause. However, Section 3 presents no further Spending Clause concerns independent of its violation of equal protection, and it does not violate the Tenth Amendment.”

In his decision nearly two years ago, Judge Tauro applied rational basis, the standard that BLAG urges in its appeal. BLAG is expected to defend DOMA based on rationales such as “responsible procreation” asserted when Congress passed the law, as well as new rationales involving “the federal interest in uniform eligibility for federal benefits.”

“Opposite-sex couples can, of course, marry in every American jurisdiction while same-sex couples can marry in only some,” wrote BLAG in a brief filed last September. “If Congress simply incorporated state-law definitions, same-sex couples would be treated as married for federal law purposes if they lived in states recognizing such marriages, but not if they lived in states retaining the traditional definition. More confusion would arise regarding same-sex couples who marry in a state or foreign country where such marriages are permitted but reside in a state that does not recognize foreign same-sex marriages.”

“In enacting DOMA, Congress rationally decided to avoid creating such a confusing patchwork in favor of a simple uniform national rule relying on the traditional definition,” they wrote.