Litigation challenging the Defense of Marriage Act — as well as House Republicans’ continued defense of the anti-gay law — is receiving renewed attention as a court hearing is set to take place next week in Boston on the constitutionality of the statute.
On Wednesday starting at 10 a.m., a three-judge panel on the First Circuit Court of Appeals will hear arguments on DOMA, which prohibits federal recognition of same-sex marriage, marking the first time an appellate court has considered the constitutionality of the statute.
Normally, oral arguments before the court last 30 minutes, but that time has been extended for an entire hour because judges are hearing two cases: Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.
The three-judge panel will be made up of Chief Judge Sandra Lynch as well as Judges Juan Torruella and Michael Boudin. Lynch was appointed by a Democrat, former President Bill Clinton, while Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.
Representing GLAD at the hearings will be plaintiffs in the GLAD case as well as Mary Bonauto, GLAD’s civil rights project director, who in 2003 successfully argued for the legalization of same-sex marriage in Massachusetts. Massachusetts Assistant Attorney General Maura Healey is set to argue on behalf of her state’s lawsuit against DOMA.
The Justice Department, which, after dropping its defense of DOMA, joined in efforts to declare the law unconstitutional, will also have a presence in the courtroom. Stuart Delery, who’s gay and the acting assistant attorney general for the civil division, is set to represent the Obama administration. He was promoted Feb. 27 to the position.
Defending the anti-gay law in court will be Paul Clement, a solicitor general under former President George W. Bush whom House Speaker John Boehner hired to defend the statute. Clement will be coming to Boston to defend DOMA fresh from oral arguments before the Supreme Court in D.C. against the health care reform law.
The arguments that attorneys will make before judges will likely reflect the basis of the lawsuits they filed. GLAD contends that DOMA violates its plaintiffs’ rights under the Equal Protection Clause, while the State of Massachusetts has said DOMA interferes with a state’s Tenth Amendment right to regulate marriage. The Justice Department will likely join in these arguments.
On the other side, Clement will likely argue that DOMA is justified because it ensures uniformity with marriage laws and that marriage should be reserved for opposite-sex couples to ensure procreation.
In both DOMA cases that are coming before the First Circuit, DOMA was found unconstitutional at the district court level. U.S. District Judge Joseph Tauro, a Nixon appointee, ruled in July 2010 that the anti-gay law was unconstitutional in both cases.
The cases come before the First Circuit just a month after a California federal court ruled against DOMA in the case of Golinski v. United States. In February, the U.S. District Judge Jeffrey White ruled against DOMA on the basis that the anti-gay law “unconstitutionally discriminates against married same-sex couples.”
Jason Wu, a staff attorney for GLAD, said the California district court decision may play out in the oral arguments before the appellate court.
“It always helps when another court affirms what we believe is right, which is that DOMA represents a straight-forward equal protection violation and there is really no good reason to treat gay married couples differently from straight married couples,” Wu said. “The court in Golinksi agreed with us; the district court in Massachusetts, Judge Tauro’s opinion agreed with us. And that’s what will be presented to the First Circuit.”
Wu said GLAD hopes for a decision from the First Circuit in “a timely fashion” after the oral arguments, but said he couldn’t offer a more precise prediction for when a ruling would be handed down. The case dragged out after the Obama administration dropped the defense of DOMA and the House took up defense of the statute, and Wu said the prolonged duration of the lawsuit has harmed plaintiffs.
“It’s been almost two years actually since the district court’s ruling came down in our favor, and in that two-year period, our plaintiffs continue to be harmed,” Wu said. “One of our plaintiffs is owed $50,000, I believe, in tax harm. One of our plaintiffs, Herb Burtis, is 82 years old and continues to be denied the survivor Social Security benefits from his deceased spouse.”
Despite his hopes the case will be resolved, Wu added he expects the Supreme Court will take up the case after a decision is handed down.
“We need resolution as to the constitutionality of DOMA for all married couples in the country because it’s not just couples in Massachusetts who are being harmed by DOMA everyday,” Wu said.
House Republicans elected to take up defense of DOMA in court after the Obama administration early last year announced it would no longer defend the anti-gay statute. In the past week, the Republican defense of DOMA has come under fire from Democrats.
During a hearing before the House Appropriations Legislative Branch subcommittee on Tuesday, House Chief Administrative Officer Dan Strodel asserted Republican leadership had collected nearly $742,000 to fund defense of DOMA in court. Boehner had last year raised the cost cap of defending DOMA to $1.5 million.
Strodel testified that the money had come from the House Salaries, Officers and Employees account. Boehner had threatened to redirect funds from the Justice Department to pay for defense of the law, but Strodel said those funds hadn’t contributed to defense of the statute.
According to the Huffington Post, the issue of defending DOMA prompted a fiery debate between Democrats and Republicans.
Rep. Mike Honda (D-Calif.) reportedly asked House General Counsel Kerry Kirchner why the House is defending an “unconstitutional law that separates all of us” and said the money could go to better uses, such as ”resources to the family of Trayvon Martin in Florida.”
Rep. Steven LaTourette (R-Ohio) toed the Republican line on DOMA saying, “When is the Department of Justice going to do their job? You can’t pick which laws you want to defend and which laws you don’t feel like enforcing.”
On Monday, six House Democrats — Reps. Jerrold Nadler (D-N.Y.), Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.), David Cicilline (D-R.I.) and John Conyers (D-Mich.) — sent a letter to Boehner renewing their earlier request for a briefing on his defense of DOMA as they urged him to stop defending the law in the wake of a California federal court’s decision against the statute.
“There simply is no legitimate federal interest served by denying married same-sex couples the federal responsibilities and rights that other married couples receive, and the harm caused to these families is unjustifiable,” the letter states. “Two federal courts have agreed, and it is no longer credible to claim that the law is not constitutionally suspect.”
Boehner’s office didn’t respond to the Washington Blade’s request for comment on the letter, but Michael Steel, a Boehner spokesperson, dismissed the letter when talking to the Huffington Post.
“Washington Democrats had two years of unified control over the House, the Senate and the White House to overturn the Defense of Marriage Act,” Steel was quoted as saying. “They chose not to try. We will continue to respect the law, which passed both Houses of Congress with bipartisan support and was signed into law by President Bill Clinton.”
Activity also continues in other DOMA cases. On Monday, the Justice Department submitted briefs in the Golinski case asking the U.S. Ninth Circuit Court of Appeals to expedite consideration of the case. Boehner’s lawyers last month appealed the decision to the the appellate court.
Boehner’s intervention in McLaughlin v. Panetta, the lawsuit filed on behalf of gay troops against DOMA by the Servicemembers Legal Defense Network, is also expected soon. The House has until April 28 to decide if it will defend the anti-gay law against the lawsuit.