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Federal Appeals Court Hears Historic Arguments on Constitutionality of DOMA: VIDEO

(image via @GLADlaw)

Historic arguments were made in the challenge to the Defense of Marriage Act today as the 1st Circuit Court of Appeals in Boston became the first federal appeals court to consider the constitutionality of DOMA.

Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto and Massachusetts Attorney General Martha Coakley's Civil Rights Division chief Maura Healey argued before Chief Judge Sandra Lynch and Judges Juan Torruella and Michael Boudin.

Watch the press conference held by GLAD following the hearing, AFTER THE JUMP...

GLAD has some photos from outside the proceedings at its Facebook page.

PlaintiffsPlaintiffs Bette Jo Green, Jo Ann Whitehead, Jonathan Knight, Marlin Nabors & Dean Hara after today's arguments. (image via @GLADlaw)

Reports Chris Johnson at the Washington Blade:

Lawyers squared off over the constitutionality of DOMA, amid discussion about whether the law fails a rational basis standard of scrutiny or interferes with a state’s rights under the Tenth Amendment. Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.

Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples. Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”

MetroWeekly's Chris Geidner reports that "the four lawyers arguing the two cases to three judges appeared to be operating from different worlds" and that "one of the only points of complete agreement was that DOMA was an unprecedented attempt by Congress to define marriage across all federal laws."

Geidner adds:

Delery, representing the federal defendants in the two cases, Gill v. Office of Personnel Management and Massachusetts v. United States, was in the unusual position of agreeing with the plaintiffs on most points because of President Obama's February 2011 decision that Section 3 of DOMA is unconstitutional because such laws should be subjected to heightened scrutiny and that, accordingly, DOJ would stop defending DOMA in court.

The head of Department of Justice's Civil Division, Delery told Chief Judge Sandra Lynch and Judges Juan Torruella and Michael Boudin today that Congress's intent to single out gay and lesbian couples for discrimination was clear from the name of the bill itself: "It's a defense against something, and that defense was [against] same-sex couples."

Geidner also notes some of Paul Clement's argument for the House Republicans in defense of the law:

When Judge Torruella asked Clement if it was relevant that DOMA was, as Clement had put it, the "first comprehensive attempt" at such a definition, Clement said no -- pointing to the fact that, in his view, DOMA was "not in any way an effort to override states."

He even acknowledged at one point, "The federal government isn't in the business of having its own marriage certificates."

Although the debate over the level of scrutiny to be applied to sexual orientation classifications was front and center today, Clement also made an argument that a prior case heard by the First Circuit regarding the constitutionality of "Don't Ask, Don't Tell" -- Cook v. Gates -- foreclosed the question by concluding that rational basis should apply.

Much more at MetroWeekly and the Washington Blade.

Watch the press conference held by GLAD following the hearing, AFTER THE JUMP...

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  1. Thank you, GLAD!

    Posted by: Frank OFile | Apr 4, 2012 10:26:48 PM

  2. If the summary of the linked articles is confusing, I suggest reading up on the Wikipedia articles for "judicial review," "rational basis review," and "suspect classification." Then read the Washington Blade article. It's a bit dense, but the basic idea is that these lawyers are arguing over two key points: (1) what standard of review is appropriate in deciding constitutionality of DOMA? This touches upon the question of whether gays and lesbians are a suspect class (and therefore laws restricting our rights should be held to the highest standard of review). (2) If DOMA is unconstitutional, which part(s) of the Constitution does it violate?

    What is interesting news here is the DOJ's current position under Obama. They hold that even the loosest standard of review is insufficient to support DOMA, so they won't defend it on any basis. This is remarkable because the rational basis standard pretty much requires that such legislation only be coherent and not gibberish. Another interesting point is that the DOJ disagrees with Massachusetts' claim that DOMA violates the 10th Amendment (i.e., that marriage falls under the jurisdiction of the states). While this seems unfavorable to us on the surface, this position may actually be very favorable and logical, because if DOMA is struck down on 10th Amendment grounds, that might set up a situation where same-sex marriages may be valid in some states but invalid in others, and the federal government would have to defer to each state's decisions regarding who qualifies for federal recognition. This would be bad because of existing legislation in numerous states. So the DOJ's position is actually trying to help us by making it about the whole ball of wax--if we win at the federal level, all states would then be required to recognize same-sex marriage regardless of whether they'd passed constitutional amendments to ban it.

    Ideally, what we want to see happen is that (1) we are federally recognized as a suspect class (like race and religion), therefore (2) subject to strict scrutiny, and (3) DOMA is found unconstitutional under the 14th Amendment, not the 10th.

    Posted by: atomic | Apr 5, 2012 1:21:43 AM

  3. DOMA may not raise any 14th Amendment issues since the plaintiffs are persons to whom their states have already extended equal protection.

    If we win on 10th Amendment grounds, the next step is to force interstate recognition of marriages validly performed under the full faith and credit clause.

    Posted by: Rich | Apr 5, 2012 3:30:51 AM

  4. @Rich: No one is raising a 14th Amendment challenge as the Equal Protection Clause applies only to the states. Rather, DOMA is accused of violating the 5th Amendment's Due Process Clause, which applies to the federal government. The Due Process Clause of the 5th Amendment has an "equal protection component" (Bolling v. Sharp) and is essentially the same thing as the 14th Amendment, just applied to the federal government.

    @Atomic: If DOMA were held unconstitutional under the 10th Amendment, it would not preclude a future challenge mandating equal marriage in all states. States are free to set their own marriage laws however they like except those laws cannot violate the 14th Amendment's right to equal protection of the law. For example, states cannot ban interracial marriage (Loving v. Virginia). Do state-level bans on same-sex marriage violate the 14th Amendment? That is not the question being asked today and will not be answered in this case.

    Posted by: Bill S. | Apr 5, 2012 3:59:38 AM

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