Court Deals Blow to DOMA

By Advocate.com Editors

Originally published on Advocate.com July 08 2010 3:35 PM ET

In a major victory for marriage equality advocates, a federal judge in Boston ruled Thursday in two separate cases that a critical portion of the federal Defense of Marriage Act is unconstitutional.

In one challenge brought by the state of Massachusetts, U.S. district judge Joseph Tauro ruled that Congress violated the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married.

In the other Tauro ruled that DOMA violates equal protection principles of the constitution as embodied in the Due Process Clause of the Fifth Amendment. That case, Gill v. Office of Personnel Management, was brought by Gay and Lesbian Advocates and Defenders, the group that won the landmark gay marriage decision in 2003 before the Massachusetts supreme court. GLAD represents seven married couples and three widowers in the suit who claim DOMA renders serious harm to same-sex couples by denying them federal marriage-based benefits afforded to opposite-sex couples.

“In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled,” Tauro wrote. “And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue.” 

Largely overshadowed by the federal challenge to California's Proposition 8 currently before a San Francisco judge, the two DOMA lawsuits are narrower in scope, targeting just one portion of the 1996 law, known as Section 3, that limits the definition of marriage to one man and one woman for
all federal purposes. Attorneys challenging Prop. 8 have made broader claims regarding the fundamental right to marriage and the unconstitutional
nature of laws that bar marriage rights for same-sex couples.

The two legal victories come just two days after gay rights activists were dealt a stinging defeat in Hawaii, where Gov. Linda Lingle vetoed a bill that would have granted civil union rights to gay and lesbian couples in the state. Legal advocacy groups have vowed to file a lawsuit challenging Lingle’s veto.

“Today the court simply affirmed that our country won’t tolerate second-class marriages,” said GLAD Civil Rights Project director Mary Bonauto, who argued the case. “I’m pleased that Judge Tauro recognized that married same-sex couples and surviving spouses have been seriously harmed by DOMA and that the plaintiffs deserve the same opportunities to care and provide for each other and for their children that other families enjoy. This ruling will make a real difference for countless families in Massachusetts.” 

In his 39-page opinion in Gill, Tauro dismissed lawmakers' intentions in passing DOMA to "encourag[e] responsible procreation and child-bearing," among other identified societal aims. 

"Even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages," Tauro wrote. "Such denial does nothing to promote stability in heterosexual parenting.

Preserving marriage as a one-man, one-woman institution for the interests of "responsible procreation" was a central argument for attorneys defending Prop. 8 in federal court — one that faced similar scrutiny during closing arguments last month from U.S. district judge Vaughn R. Walker, who has yet to reach a decision in the case. 

In oral arguments in May, Bonauto argued in Gill that the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, noting that a 1996 House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

In Commonwealth of Massachusetts v. Health and Human Services, Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Tauro during oral arguments that Section 3 violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. Healey called DOMA an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.”

Christopher Hall, representing the Department of Health and Human Services, argued that Congress should be able to control the meaning of terms, such as “marriage,” used in its own statutes, and should be able to control how federal money is allocated for federal benefits provided to people based on their marital status.

In considering whether the federal government had any legitimate need for DOMA, both Bonauto and Healey had urged Tauro to apply strict scrutiny review, which requires the government to show a compelling reason for a law that affects a fundamental right or a vulnerable group. In both lawsuits, however, Tauro said that DOMA failed to meet even the most simple judicial review, rational basis.

Attorneys Ted Olson and David Boies argued in the Prop. 8 federal case that the antigay ballot measure, passed by a slim majority of California voters in 2008, should be reviewed by the courts under strict scrutiny, in part because it took away rights from a minority group that historically has been discriminated against.

Chad Griffin, a founding board member of the American Foundation for Equal Rights, which spearheaded the Prop. 8 suit, applauded Tauro's decision. "Creating separate classes of people to deny them federal benefits, like DOMA does, is discrimination and it is wrong," Griffin said in a statement.

Jennifer C. Pizer, Lambda Legal's
National Marriage Project Director, heralded the decision in a statement
on Thursday. "Since 1996, the so-called 'Defense of Marriage Act' has
defended no one, while imposing senseless and cruel discrimination
against married same-sex couples and their families," she said. 

Deploring
the ruling Thursday was Andrea Lafferty of the Traditional Values
Coalition, who told the Associated Press that Tauro was a "rogue judge"
practicing "judicial activism." She added, "We can't allow the lowest common
denominator states, like Massachusetts, to set standards for the
country."