BOSTON -- A three-judge panel in Boston heard oral arguments Wednesday ( April 4 ) in the first challenge to the Defense of Marriage Act ( DOMA ) to reach a federal appeals court. And the challenges to counsel representing the Republican leadership of the U.S. House, which is defending the statute, came fast and furious, particularly from the panel's one ethnic minority member.
Isn't DOMA "forcing states to change their [ marriage ] laws to comply?" asked Judge Juan Torruella of Paul Clement, the counsel hired by the Bipartisan Legal Advisory Group ( BLAG ) , headed by House Speaker John Boehner. Torruella, who came to the First Circuit from the District Court for Puerto Rico. And if states don't comply, asked Torruella, don't they lose all sorts of benefits downstream? What if DOMA said the federal government would not recognize marriages between different races, said Torruella. And could Clement really argue that a First Circuit ruling in a case concerning the "Don't Ask, Don't Tell" law that it could be justified on a simple rational basis alone be considered binding in this case, given the "different standards" for courts reviewing military matters?
Judge Michael Boudin pressed Clement to explain Congress's reasons for passing DOMA. When Clement responded that Congress sought to "preserve" prior legislative understandings of what marriage means, Boudin pushed back, asking him, "What, beyond the status quo?"
Chief Judge Sandra Lynch asked Clement to "expand" on his argument that Congress passed DOMA to provide for a "waiting period" to see how the same-sex marriage issue would play out in the states.
They were not extraordinary questions and they cannot be seen as providing any real reading of how the judges might rule. But the judges had few questions for the Commonwealth of Massachusetts's representative in court, Maura Healey, and even fewer for Gay & Lesbian Advocates & Defenders' attorney Mary Bonauto.
The focus was squarely on Clement, fresh off his challenge to the Obama administration's Affordable Care Act last week in the U.S. Supreme Court, and the Obama administration's representative, Department of Justice's recently promoted Acting Assistant Attorney General for the Civil Division, Stuart Delery.
The case before the panel was a consolidation of three cases, generally known as Gill v. Office of Personnel Management. U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution's guarantee of equal protection, its Spending Clause, and the Tenth Amendment right of states to sovereignty. Section 3 of the federal law, passed in 1996, states that, for federal government purposes, "the word 'marriage' means only a legal union between one man and one 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." None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.
The DOJ filed the initial appeal to the First Circuit U.S. Court of Appeals and filed a brief laying out various rational basis arguments to justify DOMA. But one month later, in February 2011, the U.S. Attorney General announced that the Obama administration considers DOMA unconstitutional and would not defend it in most cases.
In court Wednesday, Clement tried to bolster his own rational basis arguments by pointing out that DOJ's initial brief had proffered reasons it considered legitimate for DOMA.
"DOJ can change its position," said Clement, "but the prior submission doesn't go away."
DOJ's Delery told the panel the president and the DOJ now believe the court should hold DOMA to a "heightened" standard of scrutiny, much more difficult to satisfy than identifying a mere "rational" reason for the law putting same-sex couples at a disadvantage.
"Rational basis," said Delery, "would permit the court to disregard what actually motivated" Congress to pass DOMA: animus toward same-sex couples. But, he added, "I'm not here to defend it on any standard."
However, Delery did defend DOMA against the Commonwealth of Massachusetts' argument that DOMA violates the Tenth Amendment to the Constitution.
The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'."
Maura T. Healey, chief of the Massachusetts Attorney General Office's Bureau of Public Protection and Advocacy, told the panel that DOMA amounted to a "revolutionary" act by Congress to take from the states their long-standing power to define marriage within their own borders.
"Congress doesn't like that gay people are getting married" and has taken the "extraordinary" step of encroaching on a "matter of core state sovereignty," said Healey. Healey said DOMA interferes with Massachusetts' authority to have a uniform marriage code that requires the state to treat same-sex couples differently. She challenged Clement's claim that DOMA sought uniformity for the purpose of federal regulations, noting that Congress had not taken any steps to create uniformity in the acceptable age for marriagea requirement that differs from state to state.
DOMA, she said, is "really a rule of exclusion" aimed at gays.
In the current case, the DOJ and the Commonwealth of Massachusetts have argued that DOMA is a violation of the Spending Clause. The Spending Clause says Congress has the power to collect taxes and pay debts to promote the "general welfare" of the country. Massachusetts says DOMA violates the Spending Clause by conditioning federal funding on invidious State discrimination against its own citizens.
Healey and GLAD's Bonauto had only 10 minutes each to state their positions, even though GLAD and Massachusetts brought the lawsuits that led to the district court ruling that struck DOMA Section 3. But both were emphatic in their denouncement of DOMA as targeting gays for no purpose other than animus.
Bonauto, whose voice seemed a little hoarse, reiterated GLAD's claim that DOMA violates the Constitution's guarantee of equal protection for same-sex couples. The law deserves heightened scrutiny, she said, "but it fails even the rational test." When Judge Lynch asked her to respond to Clement's claim that Congress was merely trying, with DOMA, to respond to a changing legal landscape brought on when Hawaii first considered a same-sex marriage lawsuit, Bonauto replied that marriage laws have frequently changed throughout history. But what changed with DOMA, she said, was Congress's deference to the states. Even during the time that some states banned interracial marriage, said Bonauto, Congress deferred to each state's definition of marriage.
"There's no problem that's being solved by DOMA," said Bonauto. Section 3 of DOMA, she added, puts up a sign that says, "No married gays need apply" and it "is inflicting a broad range of harms."
There was considerable time given to Clement's argument that the First Circuit can apply only a rational basis test to DOMA, and not the more difficult heightened scrutiny review. That argument emerges out of a First Circuit decision in 2008 in Cook v. Gates. The First Circuit upheld the military's "Don't Ask, Don't Tell" and, in doing so, said that its review required only a rational justification for DADT.
GLAD and the Department of Justice sought to skip the three-judge panel review and go straight to the full First Circuit to hear the appeal, in hopes of addressing the Cook question, but the First Circuit denied that request.
Clement argued that, because the First Circuit used only rational basis review in the Cook case, it was bound to use only rational review in this case. He offered a number of "rational" reasons for DOMA, in court and in his written briefs, the desire for "uniformity," the potential for unknown consequences of recognizing same-sex marriages, and "fiscal prudence." In his written brief, Clement even argued that "scientific opinion" should not be permitted to "invade the policy realm" reserved to Congress and that Congress doesn't really even need a reason, just a "belief" to justify the law. He did not express these latter two points in court Wednesday.
Clement also argued in court, and in written briefs, that the U.S. Supreme Court has already ruled on same-sex marriage. He cited the now infamous petition Baker v. Nelson, in which a gay couple in Minnesota appealed a ruling of their state's supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple's appeal.
Dismissing an appeal has more significance than simply refusing to hear to hear an appeal. But, in dismissing Baker, the high court explained it was doing so because there was no "substantial federal question" presented by the case.
The three-judge panel had no questions for Clement concerning this argument. But GLAD, DOJ, and Massachusetts spent considerable time in their written briefs refuting that notion.
GLAD, for instance, noted that the U.S. Supreme Court's dismissal of Baker in 1972 "is no longer good law," given the Supreme Court's 2003 ruling in Lawrence v. Texas. In that decision, the Supreme Court ruled that states could not ban private consensual sexual activities of same-sex adults.
The three consolidated cases are Gill v. Office of Personnel Management, Hara v. OPM, and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services. The first two cases were brought by Gay & Lesbian Advocates & Defenders; the latter by the state.
The plaintiffs in the three consolidated lawsuits include the Commonwealth of Massachusetts, seven same-sex married couples, and three widowers who had same-sex spouses. The lead plaintiff named in one case is Nancy Gill, a U.S. Postal Service worker. The sole plaintiff in the second, more narrow, case is Dean Hara, the widow of the late U.S. Rep. Gerry Studds.
There are at least four other lawsuits currently underway challenging DOMA, but, with one exception, the others are in district court.
Two of the four cases are in the Second Circuit states. GLAD has filed a similar challenge to DOMA, Pedersen v. OPM, in the U.S. District Court of Connecticut. Briefing in that case is completed and GLAD's website indicates the group is now awaiting a decision. The ACLU's National LGBT Project filed a DOMA challenge, Windsor v. U.S. in the U.S. District Court for the Southern District of New York. Decisions in both of these cases would likely be appealed to the Second Circuit U.S. Court of Appeals.
The other two DOMA cases are in California, a Ninth Circuit state. In Golinski v. OPM, a district court judge ruled in February that DOMA violates the equal protection rights of same-sex couples. That decision has now been appealed to the Ninth Circuit. And Dragovich v. U.S., a case brought the Legal Aid Society, in the U.S. District Court in Oakland. Legal Aid and the House both filed motions March 22 seeking a summary judgment in the case.
The audio of the one-hour argument is available on the First Circuit's website; however, due to a technical issue, the first ten minutes or so of the proceeding were not captured.
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