DOMA Challenge in Court Today

By Julie Bolcer

Originally published on Advocate.com May 06 2010 9:05 AM ET

On Thursday morning the federal district court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act in Gill v. Office of Personnel Management.

The case, brought by Gay and Lesbian Advocates and Defenders, challenges Section 3 of DOMA, which prevents the federal government from recognizing same-sex marriages. The case does not extend to whether individual states can recognize same-sex marriages.

On behalf of seven married same-sex couples and three widowers, GLAD attorney Mary L. Bonatuo will argue that the section of DOMA violates the federal constitutional guarantee of equal protection as applied to federal income taxation, Social Security benefits, and federal employee and retiree benefits.

“We think it’s actually really simple,” GLAD executive director Lee Swislow told The Advocate moments before heading to the court Thursday morning. “The government has carved out one set of legally married couples and excluded them from the federal benefits that every other legally married couple gets. Throughout its history, the federal government has always respected the state definition of marriage. But for same-sex couples, they’re making the decision. We say there is a clear violation of equal protection.”

The federal government, which has filed a motion to dismiss the case, calls the 1996 law discriminatory in its brief and concedes that the Obama administration is seeking repeal. However, the government says it is not discriminatory to maintain the status quo while the issue gets resolved. (Story continued on next page)







Gill v. OPM differs from Perry v. Schwarzenegger, the
challenge to Proposition 8 in California, because of its narrower scope.
In contrast to the focus on federal benefits, plaintiffs in the more
expansive California case argue that there is a federal fundamental
right to marry.

“We are arguing that if a state says a couple is
married, then the federal government should respect that marriage for
purposes of benefits,” said Swislow. “If we are successful in our
lawsuit, it doesn’t mean that anyone can get married who can’t already
get married. This is not a marriage case. It’s about how legally married
same-sex couples get treated.”

Still, legal analysts see the
case as a potential building block for the Perry case, which is
widely expected to reach the Supreme Court. The
National Law Journal
said Gill v. OPM “could be the gay
marriage test with the greatest national impact," and observers view the cases as complementary.

"The core issue that’s undermining both is equal protection," said Nancy Van Tine, a Massachusetts divorce lawyer and partner at the
Boston-based law firm, Burns and Levinson.

A decision is expected from the court within a few months to a year. Whichever side loses
is expected to appeal, a process that could take the case all the way to the high court.

"It will clearly be appealed beyond this level," said Van Tine. "I would think the Supreme Court would want to hear it."

Arguments before U.S. district judge
Joseph L. Tauro get under way Thursday at 10:30 a.m. in Boston.
The arguments will not be broadcast, but GLAD plans to tweet updates.











During the hearing, a fire alarm went off, prompting those in the courthouse to evacuate at approximately 11:40 a.m. Eastern time, according to Keen News Service.

Reporter Hannah Clay Wareham tweeted that U.S. marshals were spotted at the courthouse, but people were allowed back inside after approximately 25 minutes.