GLAD continues legal offensive against DOMA

Nov. 2, 2011
By: Chuck Colbert/TRT Reporter
Gay & Lesbian Advocates & Defenders filed a brief on Thursday, Oct. 28 in the First Circuit Court of Appeals in Boston, a legal step that moves a constitutional challenge to the federal Defense of Marriage Act closer to a hearing date. Oral arguments are expected sometime in early 2012.

The challenge, a case known as Gill v. Office of Personnel, is the first-of-its-kind offensive against DOMA to reach a federal appellate court. In July 2010, U. S. District Court Judge Joseph L. Tauro ruled that Section 3 of DOMA is unconstitutional for denying federal benefits to same-sex married couples.

“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to plaintiffs violates equal protection principles embodied in the Fifth Amendment,” wrote Tauro.

GLAD filed suit on behalf of seven plaintiff couples and three widowers, all of whom were married in Massachusetts under the landmark 2003 Goodridge decision, which ushered in marriage equality to Commonwealth and beyond.

Section 3 states that for federal purposes “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.'”

The 1996 law means that legally married same-sex couples are denied more than 1,000 rights, responsibilities, and benefits attendant with marital status at the federal level.

GLAD’s 72-page brief asks the appeals court to uphold the district court’s decision and forcefully counters a brief filed by the Bipartisan Legal Advisory Group of the U. S. House of Representatives, or BLAG, which is defending DOMA.

In February, the Department of Justice notified the court it would no longer defend DOMA in the First Circuit. But in March, BLAG filed a motion to intervene, which the Justice Department did not oppose. Subsequently, the Court established a briefing schedule.

BLAG filed its appellate court brief on Sept. 22. It argues that in enacting DOMA, Congress had rational reasons for doing so, namely to preserve the link between marriage and children, to encourage childbearing by parents of both sexes, and to encourage responsible procreation.

BLAG’s brief also argues that Congress acted reasonably in anticipating unknown consequences of redefining traditional marriage, as well as in protecting the public treasury and saving taxpayers’ money in payment of benefits.

On the contrary, says GLAD’s Civil Rights Project director Mary L. Bonauto. “When all is said and done, everyone knows what was going on in 1996. Some members of Congress were openly hostile to gay people and same-sex relationships,” she explained in a statement released with GLAD”S brief-filing announcement.

“The official House Report admits DOMA’s purpose was to express ‘moral disapproval of homosexuality.’  Others reacted instinctively against people who seemed different and an issue that seemed unfamiliar,” Bonauto said.

“Since there are no policy justifications that make any sense, all that remains is dislike and discomfort,” said Bonauto. That’s why DOMA fails — dislike and discomfort are not neutral policy reasons for singling out same-sex married couples for blatantly disadvantageous treatment.”

Bonauto argued Gill before the district court. She also argued Goodrige before the Massachusetts Supreme Judicial Court.

GLAD’s brief asserts DOMA is prejudice rather than good public policy; therefore, it should be considered under rigorous legal analysis insofar as  gay men and lesbians have been historically subject to discrimination and yet participate fully in and contribute to society.

The Department of Justice has also called for a heightened-scrutiny standard of analysis.

GLAD’s brief also points out that since same-sex couples are now lawfully married in Massachusetts, none of the reasons Congress advanced in 1996 support the double standard for federal recognition of marriages.

“BLAG doesn’t seem to understand that our plaintiffs are already married,” said Bonauto. “[BLAG] keep[s] arguing against the right to marry and raising issues about why same-sex couples should be denied government marriage licenses.”

“But the federal government doesn’t issue marriage licenses; states do, and Massachusetts did,” she said. As a result, BLAG fails to justify why the Congress singled out one group of married people and denied them alone the same federal rights and responsibilities available to all other married people.”

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