Federal Appeals Court Hears Arguments on DOMA’s Constitutionality

Jim Burroway

April 4th, 2012

“Historic” is the word being tossed around as the First Circuit Court of Appeals hears oral arguments today in Boston on the constitutionality of the Defense of Marriage Act, the first time the question of DOMA’s constitutionality has been brought to the Appeals Court level.

The case before the First Circuit Court is actually the appeals of two cases which were combined at the trial court level, where DOMA was declared unconstitutional. The first case, Gill v. Office of Personnel Management, was brought on behalf of several same-sex married couples who are denied specific benefits which are routinely granted to opposite-sex married couples. The second case, Commonwealth of Massachusetts v US Dept. of Health and Human Services, was brought by the state of Massachusetts which argued that because of DOMA, the state was caught in a bind between discriminating against legally married same-sex couples or forfeiting federal funding for programs and benefits that married couples are otherwise entitled to.

Because oral arguments before the court involved two cases, and because the Obama administration announced that the Justice Department would not defend DOMA under heightened scrutiny, there were actually four sets of lawyers:

  • Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs in the Gill case.
  • Massachusetts Attorney General Civil Rights Division chief Maura Healey, representing Massachusetts in the Commonwealth case.
  • Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group which picked up the task of defending DOMA when the Justice Department announced that they would no longer do so.
  • Acting Assistant Attorney General Stuart Delery, on behalf of the U.S. Justice Department.

Metro Weekly’s Chris Geidner attended the hearing and describes a surprise move from the Justice Department:

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. [Emphasis added]

When the Justice Department made their announcement in 2011, they argued that DOMA should be evaluated under heightened scrutiny, and under that standard, DOMA was indefensible because it discriminates against gay people. Now they are saying it is indefensible regardless of the level of scrutiny the court wishes to apply.

On Clement’s part, he made a rather startling argument before the court:

Although DOJ, the Commonwealth of Massachusetts and GLAD argues that DOMA was motivated by anti-gay sentiment — “animus,” in court lingo — Clement argued that the impact of DOMA was not all bad.

“In some cases,” he said, “it’s a net financial benefit to the same-sex couple; in some, it’s not.”

Is he actually arguing that DOMA, in some cases, is in the best interests of same-sex couples? Because if he is, he’s taking a rather paternalistic stance. The issue is quite simple: that if straight couples have the option of deciding for themselves whether marriage is in their best interests, that same option should be applied to same-sex couples as well. Clement appears to have argued that only Congress can decide that for same-sex couples, while opposite-sex couples are granted the autonomy for making that decision themselves — even if it is to decide to enter a marriage only lasting 55-hours.

Washington Blade’s Chris Johnson, who also attended today’s hearing, added this observation about Clement’s arguments:

Clement offered for many reasons for why DOMA should be upheld — among them was saying the opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.

…But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.

“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.

Those were just three of the issues argued today that really jumped out at me as significant. Chris Geidner’s write-up along with Chris Johnson’s both are worth reading to get the full measure of today’s oral arguments.

Priya Lynn

April 5th, 2012

“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.

I often make that point when arguing with anti-gays who claim their concerned about children. If they were really concerned about children and think marriage is good for them they’d want the children of gay couples to have married parents. No anti-gay has ever responded to this point when I’ve made it.

Timothy Kincaid

April 5th, 2012

Prius Lynn,

I suspect that if hard pressed about those children they’d finally admit that their solution would be to take those kids out of their gay families and find good families with good values that can properly care for them and model good parenting and heterosexuality.

Priya Lynn

April 5th, 2012

The same thought occurred to me Timothy, but I suspect they think that isn’t politically correct enough to state.


April 5th, 2012

If that’s the case, then they would also have to argue to take children away from single parents for the same reasons. I have a feeling they don’t want to go there!


April 5th, 2012

First off, in regards to Clement’s first argument, I’d ask him to support that claim with even on single teenie tiny reference in the Congressional record or just some memo written by a low level staffer back at the time which said, “We support DOMA because SOME gay people would be better off from a tax or benefit perspective by NOT being married.” Just find me one example of that as part of Congress’ deliberations.

And I still want someone to explain to me how it is in the interests of the government (or the people to whom the government is supposed to belong, and who pay the bills) for people to have “unplanned offspring.” I’m not going to bother to try to look it up, but I suspect that some significant percentage of “unplanned offspring” result in additional expenditures by the government. It is my opinion that the interest of the government would be to reduce the number of “unplanned offspring” rather than doing things to encourage them.

But, if you honestly don’t have any real arguments of substance, just throw some “s*&t” on the wall, and hope Roberts and Scalia (when SCOTUS finally hears the case) will go lick it off the wall.

Timothy Kincaid

April 5th, 2012

Priya Lynn,

We are thinking alike far too much lately


Timothy Kincaid

April 5th, 2012

As bizarre as Clement’s claim may be, it is definitely a positive sign when the opponents claim that they just want what is in our best interest. Once they concede that they aren’t protecting society from monsters, then it’s all just a matter of time.

Richard Rush

April 5th, 2012

Clement argued that the impact of DOMA was not all bad.

“In some cases,” he said, “it’s a net financial benefit to the same-sex couple; in some, it’s not.”

Clement offered for many reasons for why DOMA should be upheld — among them was saying the opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.

Huh? . . . Are we sure this isn’t from The Onion’s coverage of the courtroom drama? Or, perhaps Clement aspires to be a standup comic.

Timothy Kincaid

April 5th, 2012

The “unplanned offspring” theory is the bastard child of the “sex only within the confines of marriage” theory and goes a bit like this:

Heterosexual couples have sex. And whether or not one intends to procreate, even if one uses birth control, unplanned pregnancies do occur. Sometimes, in rare instances, people who believe themselves to no longer be fertile will conceive.

The state benefits from having the resultant unplanned offspring be raised in an intact family.

Therefore, the state has an interest in the marriage of heterosexuals that don’t intend to have children. But as same-sex couples don’t have unplanned offspring, the state is in its rights to deny marriage to them.

It’s an attempt to say that marriage is only about procreation and to diffuse those who point at the 90 year old bride and say, “oh really?”

Richard Rush

April 5th, 2012

This is devastating to the foundation of my being. All my life I’ve believed that the rampant irresponsible reckless breeding by straights was a social scourge, and now, in my sixties, I discover that it’s a coveted moral value to be preserved and protected. I shudder while anticipating what may be next. Even us atheist/agnostic types need a few absolute truths to form a solid foundation for our lives.


April 6th, 2012

It doesn’t matter what the attorneys say, what matters is the expert testimony that was stated in open court subject to cross examination.

I know Dr. Nancy Cott testified in the Prop 8 Trial, but she has also testified in other trials, and I am pretty sure DOMA is one of them. Dr. Nancy Cott IS THE expert and she says that no State has ever required an intent or ability to produce children as a requirement for a Civil Marriage License.

The only way for Scalia to rule against is to completely ignore the EVIDENCE present in the trial record. I should go look up what trials Dr. Cott has testified in, that would be helpful as there are several DOMA trials going on.

Ben in Oakland

April 6th, 2012

Timothy, Anent your last comment. I was going to say the same thing, as in…

The whole argument is now boiling down to Penis and Vagina!!! Rah! Rah! (and in deference to the paternalistic implications) und Rah!

Regan DuCasse

April 7th, 2012

Can’t the opposition see when and in what way it has to be equal rights, or equal discrimination?
1. If they are arguing that marriage is best reserved for the fertile and fecund, then one set of rules can’t apply to separate sets of citizens who are BOTH sterile or don’t produce children.

2. The same goes for their ideal of male/female physical compatibility . There are couples of extremely disparate physical ability or who lose certain functions for whatever reason, or are physically kept apart (such as in the case of the incarcerated). I read somewhere there are millions of celibate marriages as well.
Physical incompatibility is a matter of personal and individual interest and capacity, the state can’t decide which is more or less or what’s satisfactory to the couple. THAT is up to the couple.

3. If the purpose of marriage is to support and give more secure and committed legal bindings to child rearing, then the next generation raised by gay parents have the same need and will benefit in the same way as children of op sex couples. The CHILDREN are all the same, even if their parental situation isn’t. There are children being raised by disabled parents, and there is no restriction on those with genetic diseases to have offspring. The decision to have them, regardless of that issue, is left up to the couple, not the state.

Each and every defense, so far, of marriage discrimination against gay people could also apply to straight couples.
Even the factor of sexual orientation. Since it’s legal for those who are heterosexual to marry another heterosexual, it’s only right that a gay person marry someone who shares THEIR orientation.
It’s not just about gender, but that factor too.

Whatever way the opposition tries to make their case, NONE of their defense is LEGAL now, or MUST be applied equally.
Just as there are no separate rules for blacks (anymore) than there are for whites, or for men as opposed to women (anymore), then there can’t be separate rules that only apply to one or the other of orientations.

It should be an easy one for SCOTUS to decide on. They might punt, because they don’t want to have to deal with it.
But thems the facts, and in no way does any discrimination against gay people do any good to justify it. Not even any good for marriage and it’s intents and purpose.

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