By Julie Bolcer
Originally published on Advocate.com April 04 2012 6:30 PM ET
BOSTON — A three-judge panel of a federal appeals court heard arguments over the constitutionality of the Defense of Marriage Act in Boston on Wednesday, marking a first in the mounting legal challenges against the 1996 law.
Three judges from the United States Court of Appeals for the First Circuit — Chief Judge Sandra L. Lynch, Judge Juan R. Torruella, and Judge Michael Boudin — listened and asked questions as attorneys for the state of Massachusetts and a group of seven legally married same-sex couples and three widowers urged the panel to uphold two decisions from July 2010 that found a key provision of DOMA unconstitutional.
U.S. District Judge Joseph L. Tauro ruled in Gill v. Office of Personnel Management that Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment of the U.S. Constitution. Judge Tauro, a Nixon appointee, also ruled in Commonwealth of Massachusetts v. United States Department of Health and Human Services that the section violates the Tenth Amendment and the Spending Clause.
Paul Clement, a former solicitor general under President George W. Bush who argued against the Obama health care law before the Supreme Court last week, represented the House of Representatives in defending DOMA. House Republican leadership intervened via the Bipartisan Legal Advisory Group last year after the Justice Department, in a reversal of its position, announced that it had found DOMA unconstitutional and would no longer defend the law in court.
Kicking off arguments in the downtown Boston courtroom packed with more than 100 spectators, Clement focused on why the “rational basis” standard of review should apply for DOMA. He argued that federal lawmakers could “rationally choose to have a uniform definition of marriage” because of the “uniqueness of the dynamic that Congress was facing in 1996,” the year the Hawaii Supreme Court ruled that denying marriage licenses to same-sex couples constituted discrimination. Voters in the state ultimately approved a constitutional ban on same-sex marriage, but faced with the new prospect of same-sex marriage, Clement argued that it was rational for Congress to conclude, “We’re going to exercise our power to have our own definition.”
Clement argued that the Cook v. Gates decision, in which the First Circuit upheld the constitutionality of the “don’t ask, don’t tell” policy in 2008, applied rational basis and thereby bound the panel to that standard. Judge Juan Tourella, a Reagan appointee, noted that the decision applied to the military, which courts usually treat under a different standard, and asked, “Does that make any difference?” He also posed the questions, “What is the rational basis for this legislation?” and “Is there any prior statute which defines marriage?”
Clement responded “yes and no,” to the latter question, while acknowledging that it was “fair to say” that DOMA is “the first comprehensive effort to apply a definition of marriage across the federal code.”
During their exchange, Judge Boudin appeared to drop an object, resulting in an audible thud. The noise prompted Judge Tourella to say, “Did I ask the wrong question?”
Stuart Delery, acting assistant attorney general, delivered arguments for the federal defendants. He focused on explaining the changed position of the Obama administration, which decided last year that DOMA, which classifies people based on sexual orientation, should be subjected to heightened scrutiny.
The law, starting with its very name, intentionally targets same-sex couples and shows “animus” toward them, Delery told the panel. He mentioned the “overt moral disapproval of homosexuality” on display in the legislative record from 1996.
“It’s a defense against something, and that something was same-sex couples,” he said.
During the analysis, Judge Boudin, an appointee of George H.W. Bush, interrupted to ask, “What are you asking the panel to do?”
Delery paused before responding that the “most common” approach would be for all the judges of the court, and not just a panel, to address the heightened scrutiny analysis on the merits, although the Justice Department would defer to the court on other procedures that might allow the panel to “accomplish that through other means.”
“The determination and the position of the department is that rational basis analysis is inappropriate in this circumstance and doesn’t fit,” said Delery. “To be clear, your honor, the direction from the president and the attorney general has been that the department will cease defending Section 3 of DOMA on any basis, so I’m not here to defend it under any standard. The point is that we think heightened scrutiny is the appropriate standard and that’s what should be applied.”
Asked by Boudin what Supreme Court cases the administration principally relied on for the heightened scrutiny conclusion, Delery said that “a series of cases outline the factors that should be considered,” although he said that, “We don’t think the Supreme Court has ever confronted whether sexual orientation is a suspect class.”
Regarding the claims brought by Massachusetts that DOMA infringes on its rights as a state, however, Delery maintained that, “We don’t think the Tenth Amendment or Spending Clause provide an independent basis for invalidating the statute. This law was motivated out of disapproval to same-sex couples, but there isn’t an independent Tenth Amendment problem.”
Mary Bonauto, the civil rights project director for Gay and Lesbian Advocates and Defenders, which brought the Gill case on behalf of same-sex couples and widowers denied federal benefits, delivered arguments emphasizing that DOMA “violates the equal protection guarantee regardless of what level of scrutiny applies.” The law, she said, creates an “across-the-board exclusion” that defies the equal protection promise that “likes are supposed to be treated alike.”
“What federal interest is served by only singling out the marriages of same-sex couples for this disrespect?” she asked. “What’s the justification for singling out that group for different treatment?”
“We believe that DOMA is an irrational, arbitrary classification of gay people for it own sake, and not for any other purpose,” said Bonauto, who also challenged the “uniqueness” analysis from Clement in reference to the 1996 context. “The one constant about marriage law has been change,” she said.
The judges asked few questions of Bonauto, who afterward said, “I was expecting a lot of questions, but they clearly have all the briefing they could possibly need, and they’ve heard from each of us, so hopefully they have what they need to make the right decision and end this second-class citizenship for gay people.”
Maura Healey, chief of the Civil Rights Division for the Massachusetts Attorney General's office, spoke last during the oral arguments session. She began her presentation by asking panelists to consider what it would be like to have parents who were “sort of” married. She argued that DOMA is “revolutionary” in precisely that way because it “requires us to live with two distinct and two unequal forms of marriage.”
“This is a burden that Congress has imposed simply because it doesn’t like the fact that gay people are getting married,” she said. She named everyday consequences that include an inability for veterans to be interred next to their same-sex spouses in Massachusetts, because it would result in the denial of federal funding to the state cemeteries.
Chief Judge Lynch, a Clinton appointee, at one point flipped the issue on Healey, whose arguments had emphasized “core state sovereignty,” and asked about the reverse issue of a Massachusetts law driving federal policy.
Healey responded that, “where Congress chooses to use marriage as a term in its statutes, it must do what it has always done and accept state marriage.”
“We would like the federal government to return to what it has always done, and recognize, respect, our federal authority,” she said. “We’re just asking that this cooperative federalism be restored to its proper place.”
Chief Judge Lynch, who asked the least amount of questions, thanked the attorneys at the conclusion for their “superb arguments.”
“We’re very appreciative,” she said. “We’ve learned a lot from you.”
Gill plaintiffs expressed optimism outside the courthouse following the oral arguments. Their case, initially filed in 2009, is the most advanced among a handful of DOMA challenges moving their way through the federal court system.
Jo Ann Whitehead, who attended with her spouse Bette Jo Green, called the morning’s proceedings “very inspiring.” There is no timeline for a decision, but GLAD attorneys expect that if they prevail at the First Circuit, the government will appeal to the Supreme Court and that the high court will accept the case.
“I feel very hopeful, “ said Whitehead, “both on the basis of the case today and just in terms of the general public’s acceptance of same-sex couples.”
“I feel like every year we have, we get better and better,” said Green, who married Whitehead in 2004.
Massachusetts Attorney General Martha Coakley, who attended the oral arguments, predicted that both her state and GLAD would be “victorious.” In a brief interview, she said that she left the courtroom with the impression of an “engaged bench.”
“I think that some of their questions indicated that they had real concerns about the fairness issues here,” said the attorney general. “I think when you heard in context the arguments offered by those defending the statute, they seemed at best legal, formulaic. You could see the court was trying to get at, ‘What is this really about? Is there a real basis for Congress to have done this? And what is the effect in Massachusetts?' In that sense, I think the arguments for the plaintiffs were extremely effective.”
"I'm confident that Judge Tauro will be upheld," said Coakley. She turned, then quickly added, "I'm hopeful that he'll be upheld."
Listen to an audio recording of the oral arguments here on the First Circuit's website. As of this posting, the first 18 minutes of arguments were unavailable due to a technical problem.