In Boston yesterday, a challenge to the so-called Defense of Marriage Act (DOMA) was heard in federal appeals court for the first time. In July 2010, a federal district court judge found the section of DOMA which defines marriage as the union of a man and a woman unconstitutional. The appellate panel heard arguments yesterday about whether or not to uphold the lower court ruling.
The challenge to DOMA comes from two separate cases: one brought by the Massachusetts Attorney General, and the other by Gay and Lesbian Advocates and Defenders (GLAD), a New England LGBT legal organization. According to the New York Times:
In the case brought by Martha Coakley, the Massachusetts attorney general, Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.
The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.
While the Obama administration initially appealed the district court’s ruling, the Justice Department announced in February of 2011 that it would stop defending DOMA in court because it is an unconstitutional law.
Yesterday’s arguments largely revolved around the question of whether DOMA should be subjected to the lowest (and default) level of scrutiny, known as “rational basis,” or heightened scrutiny, which is a stricter constitutional test. Metro Weekly‘s Chris Geidner has further analysis:
At points in today’s appellate arguments over the constitutionality of the federal definition of marriage contained in the Defense of Marriage Act, the four lawyers arguing the two cases to three judges appeared to be operating from different worlds. One of the only points of complete agreement was that DOMA was an unprecedented attempt by Congress to define marriage across all federal laws.
Whether arguing over the rationales advanced for DOMA’s passage, the level of scrutiny from which courts should review laws that classify people based on sexual orientation, or the impact of Section 3 of DOMA on married gay and lesbian couples, the gulf between the lawyers at times prevented the sort of fireworks one might expect at a debate over a hot-button issue like “gay marriage,” as it was called when DOMA was passed in 1996.
In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation.
. . . in light of DOJ’s statement today that it will not defend DOMA even if considered under rational basis review — GLAD’s lawyers and Massachusetts’s lawyers have made arguments to the court that DOMA should be struck down as unconstitutional under rational basis.
Although the judges didn’t tip their hand today as to the outcome of the case, Clement’s [the lawyer appointed by the House Republican leadership to defend DOMA] goal today was to convince the judges otherwise. And, if he failed to do that, Clement ended his argument by noting the great strides that have been made by gay and lesbian people in the political process and suggesting that there was “another path than constitutionalization” of the issue — deferring to the political branches.
Maybe it’s just me, but when even the defense lawyer concedes the progress made by LGBT people in the political arena, it’s another indication that we’ve passed that cultural tipping point on LGBT equality. Sure, he’s trying to muck up the process by suggesting the court throw this issue back to Congress, but Clement’s concession is still worth noting.
Geidner notes that Acting Assistant Attorney General Stuart Delery, representing the federal defendants, strongly suggested in his closing argument that these cases would end up before the United States Supreme Court:
. . . Delery quoted at length from Supreme Court Justice Anthony Kennedy’s opinion in Lawrence v. Texas, in which a split court held almost a decade ago that sodomy laws are unconstitutional. Referencing Clement’s arguments about Congress’s reasons for passing DOMA, Delery told the judges today that Kennedy held then that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Telling the court that gay and lesbian people, living “open and honest lives,” have invoked those principles in this case, Delery said that the president and attorney general have done the same and urged the court to do so as well.
Stay tuned, folks.