Oral Arguments on Deck in Historic DOMA Challenge

By Julie Bolcer

Originally published on Advocate.com April 03 2012 12:20 PM ET

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.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.NANCY GILL AND MARCELLE LETOURNEAU 390x (COURTESY) ADVOCATE.COMThe timeline of any ruling from the First Circuit, when it would reach the Supreme Court, and whether it would be consolidated with any of the other DOMA challenges, remain open questions.

“It’s impossible to predict, honestly,” said Wu. “What we do know is that every day that goes by, gay and lesbian couples and families are paying the price and being harmed and so we hope for a timely resolution.”

Those couples include Beatrice Hernandez and Melba Albreu, who are among the co-plaintiffs in GLAD’s lawsuit being denied Social Security protections, employee and retiree benefits, and other federal benefits available to opposite-sex couples. Although legally married in Massachusetts in 2004, the women paid in excess of $25,000 between 2004 and 2008 because DOMA prevented them from filing their federal taxes jointly. The economic costs continue to mount for the couple, who have been together for 25 years and lived in Massachusetts for the past 20 years, with dreams of building a business together.

“Those are earnings that have a place in our lives and in our future,” said Beatrice, 51, a Web professional and writer. “We fully realize that when you file as married filing jointly, sometimes you may end up paying more in taxes, and if that’s the case, that’s fine, so long as we are filing our taxes in a manner that’s consistent with our civil status.”

The women, both Cuban-Americans, acknowledged the “slow process” of litigation but expressed gratitude to be able to live in a country where such proceedings can take place. They believe the case will bring a positive result.

“We are nervous but we feel confident that in the long run the case is a very good case,” said Melba, 56, a non-profit CFO. “The harm exists. There’s no doubt. The only reason why we are harmed is because DOMA discriminates against us. I came to this country looking for equality and for freedom, and to have an opportunity to be a part of this process is overwhelming, it really is.”

Oral arguments in the case are scheduled for Wednesday at 10 a.m. before the First Circuit Court of Appeals. No live stream of the proceedings will be available, but the court will post audio on its website after the hearing concludes. Check Advocate.com for updates from Boston.