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Massachusetts takes on DOMA
by Chuck Colbert
2010-06-09

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It was the same courtroom, the same judge, and a similar legal offensive against the Defense of Marriage Act ( DOMA ) . And once again, an openly gay woman argued that Section 3 of that 1996 law, which defines marriage for federal purposes as the union of one man and one woman, be struck down as unconstitutional.

But this time in Boston, at the John Joseph Moakley Court U.S. Courthouse, it was the state of Massachusetts—not the eight plaintiff couples who challenged the law three weeks earlier—that brought the suit.

The commonwealth's complaint contends that DOMA infringes on Massachusetts sovereignty, trespassing on the state's ability to determine eligibility for issuing marriage licenses.

As is his custom, the Honorable Joseph L. Tauro greeted reporters and spectators, along with the two lead attorneys, Maura T. Healey for the state, and Christopher Hall for the federal government, with a hearty "good afternoon."

In the same breath, Tauro quipped about a missing lectern, saying it "keeps me on my toes, literally and figuratively." When Healey offered to return the lectern she had repositioned, Tauro declined and remained standing, as he did three weeks ago, for the entire ninety-minute hearing.

Once again Courtroom 22 filled to capacity, although not as many people turned out May 26 for oral arguments in this case, Commonwealth of Massachusetts v. Health and Human Services, as the onlookers who showed up on May 6 for proceedings in Gill v. Office of Personnel Management, the lawsuit argued before Tauro by legal icon Mary Bonauto of Gay & Lesbian Advocates & Defenders.

Fewer people in attendance enabled the gracious court clerk Zita Lovett to invite members of the media to work from inside the jury box. Sitting within eight feet of the two sides legal teams, nearly a dozen journalists, listened intently, eyewitnesses to legal history in the making.

It was a full-court press lead by attorney Healey, chief of the Massachusetts attorney general's civil rights division. Using precise words and notably strong language, she told the U.S. District Court judge that DOMA "forces Massachusetts to engage in a kind of invidious discrimination."

How? By denying same-sex married couples of the same benefits received by opposite-sex couples—or risk losing federal aid.

What's worse, DOMA is "animus-based national marriage law," said Healey. She contended that the law infringes on Massachusetts sovereign authority and "forces the state to discriminate against its own citizens."

Joining Healey's team offensive at the table were Jonathan Miller and Jessica Lindemann, two lawyers from the office of Attorney General Martha Coakley, who sat in the public section, along with other spectators, including an associate justice of the state's appeals court. Years ago, he also had served the AG's office.

And yet, two courtroom observers—a married gay male couple—had perhaps the most at stake with the lawsuit. They are Army veteran Darrel Hopkins, 65, and spouse Tom Casey Hopkins, 58, of Westminster. After 20 years of decorated military service in intelligence operations, the retired chief warrant officer went on to a second, 25-year career in civil service.

At stake now are a total of 45 years of retirement. "All of my benefits are being squashed by DOMA, to the tune of tens of thousands of dollars a year," Hopkins explained outside the courtroom, ticking off some examples, including pension, health insurance, federal employee retirement system, survivor benefits program, and Veterans Administration. "You name it, [ nearly ] every aspect of my life . . . is controlled" by that law.

The married gay couple's deprivations are no hypothetical—telling points that attorney Healey, a skillful legal playmaker, repeatedly compiled.

Before law school, Healey played women's basketball for Harvard College. There, as point guard, she captioned the school to an Ivy League championship. Afterwards, Healey went on to play professional ball in Europe. She is a 2006 inductee into the New England Basketball Hall of Fame.

In action before the judge, attorney Healey—much like a basketball point guard driving the ball down court—explained how Massachusetts could lose millions in funding if it allows Vietnam War veteran Hopkins to be buried, along with his husband, in a state veterans' cemetery located in Winchendon, a request the state Department of Veterans' Services has already approved.

The federal government has "told us clearly and explicitly,'' said Healey, that DOMA forbids it.

For all his efforts, attorney Hall, arguing the government's case, just could not quite come up with a compelling rationale for the law—or for banning the burial.

Seeming perplexed, Tauro wondered out loud whether "perpetuating heterosexuality in graveyard" was a valid interest in defense of DOMA. The line drew a round of laughter from nearly everyone.

But at the end of oral arguments, DOMA remained laughing matter for Hopkins. "The hypocrisy of the federal government is appalling," said Darrel who voiced optimism about the outcome.

So did local gay-rights activist Jeff Ross. "I came because I care about the future of our community," he said. "I look forward one day to being a full citizen, equally enfranchised under the law."


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