Federal Appeals Court Hears Arguments on DOMA’s Constitutionality
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.