Oral Arguments on Deck in Historic DOMA Challenge

BY Julie Bolcer

April 03 2012 11:20 AM ET

MARLIN NABORS AND JONATHAN KNIGHT 390x (COURTESY) ADVOCATE.COMGLAD, which is representing seven same-sex married couples and three
widowers in Gill, challenged that argument in a brief filed in October.

“Much
of BLAG’s argument assumes that Congress has a legitimate basis for
adopting its own preferred views on marriage policy and attempting to
impose them on the States or their residents,” said the brief. “But
marital eligibility is a matter of state concern in our constitutional
scheme, which is why, before DOMA, the federal government had always
deferred to state determinations of marital status.

“Regarding
uniformity, BLAG fails to explain what rational purpose is served by
introducing inconsistency into the federal treatment of married couples
in order to assure that all same-sex couples – married and unmarried –
continue to be treated ‘uniformly’ as second-class citizens.”

Stuart
Delery, acting assistant attorney general for the civil division, will
represent the Department of Justice at the proceedings. GLAD will be
represented by Mary Bonauto, the organization’s civil rights project
director. Massachusetts Assistant Attorney General Maura Healey will
argue on behalf of the state, and Paul Clement will defend DOMA. House
Republicans hired the former solicitor general for President George W.
Bush, who will come to Boston immediately following last week’s oral
arguments against the Affordable Care Act before the Supreme Court.

The
three-judge panel will consist of Chief Judge Sandra Lynch, who was
appointed by President Bill Clinton; Judge Juan Torruella, who was
appointed by President Ronald Reagan; and Judge Michael Boudin, who was
appointed by President George H.W. Bush.

A ruling in the First
Circuit would affect same-sex couples in the districts of Massachusetts,
Maine, New Hampshire, Rhode Island, and Puerto Rico. However,
plaintiffs expect that if they succeed, the government will appeal to
the Supreme Court, and the high court will accept the appeal. The case
involves questions of equal protection and states rights that have
consistently been part of the Supreme Court’s caseload in recent years.

“If
we are successful at the First Circuit, we fully expect that the
government will appeal to the Supreme Court, and the Supreme Court will
accept the appeal,” said Janson Wu, staff attorney for GLAD.

The
case is the most advanced among a handful of federal challenges to DOMA
in which BLAG has intervened. Last month, the Obama administration
sought to expedite a resolution in Golinski v. Office of Personnel
Management
, a DOMA challenge under appeal in the Ninth Circuit,
involving a federal court employee seeking equal health benefits for her
spouse.













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