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Back to Section One | Back to Arts & Entertainment
posted Friday, June 1, 2012 - Volume 40 Issue 22
Federal court throws out major part of DOMA
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Federal court throws out major part of DOMA

by Mike Andrew - SGN Staff Writer

A three-judge panel of the 1st U.S. Circuit Court of Appeals ruled on May 31 that Section 3 of DOMA is unconstitutional.

The decision in Gill v. Office of Personnel Management was unanimous, and sustains a previous ruling in the case by federal District Judge Joseph Tauro.

The 1st Circuit stayed its ruling pending a U.S. Supreme Court decision in the case, meaning the plaintiffs cannot receive the economic benefits denied by DOMA unless and until the high court rules in their favor.

Section 3 of DOMA codifies the definition of marriage as only between a man and a woman for federal purposes.

The ruling does not affect other sections of DOMA, including the reciprocity provision, which says states are not required to recognize legal same-sex marriages performed in other jurisdictions.

Gill v. OPM was filed by GLAD (Gay and Lesbian Advocates and Defenders) on behalf of eight same-sex couples and three surviving partners living in Massachusetts who were denied federal benefits available to married spouses.

'We've been working on this issue for so many years, and for the court to acknowledge that yes, same-sex couples are legally married, just as any other couple, is fantastic and extraordinary,' said GLAD executive director Lee Swislow.

During oral arguments last month, the GLAD attorney said DOMA was motivated by anti-Gay bias and amounts to 'across-the-board disrespect.'

'For me, it's more just about having equality and not having a system of first- and second-class marriages,' said plaintiff Jonathan Knight, who married Marlin Nabors in 2006.

Knight said DOMA costs the couple an extra $1,000 a year because they cannot file a joint federal tax return.

'I think we can do better, as a country, than that,' Knight added.

GLAD attorneys also argued that the power to define and regulate marriage had been left to the states for more than 200 years before Congress passed DOMA.

Because President Obama and the U.S. Justice Department have concluded that DOMA is unconstitutional, they have declined to defend it in court. The constitutionality of the law was instead defended by Paul Clement, a Washington, D.C., attorney hired by the so-called Bipartisan Legal Advisory Group, set up by House Speaker John Boehner.

Clement argued that Congress had a rational basis for passing DOMA in 1996, when state governments worried they would be forced to recognize same-sex marriages performed elsewhere. Congress wanted to preserve a traditional and uniform definition of marriage, Clement said, and has the power to define terms used in federal statutes to distribute federal benefits.

The 1st Circuit panel rejected Clement's arguments.

'If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test,' the court said in its opinion.

The issue of states' rights cuts both ways, the court added, and protects states that wish to legalize same-sex marriages just as much as those that want to ban them.

'One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage,' Judge Michael Boudin wrote for the court.

'Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.'

'This is a strong opinion that affirms that DOMA is an outlier for two reasons: first, because it targets a historically disadvantaged and unpopular group; and second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,' said Mary Bonauto, GLAD's Civil Rights Project director, who argued the case.

'Congress does not get to put its 'thumb on the scales,' as the court put it, simply because it does not agree with Massachusetts' decision to allow loving and committed same-sex couples to marry.'

White House spokesman Jay Carney told reporters that the 1st Circuit's ruling is 'in concert with the president's views.'

Carney declined to say whether the administration would actively seek to have DOMA overturned if the case goes before the Supreme Court.

'I can't predict what the next steps will be in handling cases of this nature,' he said.

The next step in Gill v. OPM is for the federal Office of Personnel Management and the House-appointed attorneys to decide whether they will appeal to the Supreme Court. That request should come within the next 90 days. Even if they choose to appeal, the Supreme Court need not take up the case.

If the Supreme Court declines to hear an appeal, the 1st Circuit's ruling would stand, but it would apply only to the states within the circuit - Massachusetts, Rhode Island, Maine, and New Hampshire, and the commonwealth of Puerto Rico.

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