Massachusetts Asks U.S. Supreme Court for DOMA Review

Massachusetts Attorney General Martha Coakley has asked the Court to uphold the decision by 1st Circuit U.S. Court of Appeal striking down of DOMA as unconstitutional.
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By: Chuck Colbert/TRT Reporter–

Everybody knows this one is headed for the nation’s highest court.

And in yet another legal step, expected to expedite the U.S. Supreme Court’s consideration of the Defense of Marriage Act, Massachusetts Attorney General Martha Coakley has asked the Court to uphold the decision by 1stCircuit U.S. Court of Appeal striking down of DOMA as unconstitutional.

In seeking review, the attorney general’s brief states the “question” of  the federal law’s constitutionality “is one of national importance” and “should be conclusively settled.”

The brief adds, as “this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country.”

The lawsuit in question is Massachusetts v. Department of Health and Human Services, currently in the 1st Circuit where a three-member appellate panel of judges unanimously upheld a lower court ruling, which found Section 3 to be unconstitutional.

Section 3 defines “marriage,” for the purpose of the federal government, as “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 husband and wife.”

The effect of Section 3 is to deny same-sex couples, married in the states that issue marriage licenses to them, more than 1,000 benefits, rights, and responsibilities afforded at the federal level, including social security survivor benefits and filing joint tax returns.

Both the attorney general and Gay & Lesbian Advocates and Defenders (GLAD) filed separate suits that were upheld in both district and appeals court findings.

The state’s lawsuit was U.S. Health and Human Services v. Commonwealth. GLAD’s suit was Gill v. Office of Personnel Management.

In both cases, the court said the ban on federal recognition of same-sex marriages violates the Constitution’s guarantee of equal protection.  The two cases have been consolidated under the title Massachusetts.

But the 1st Circuit did not agree with the state that DOMA violates the 10th Amendment right for states to retain powers that are not “expressly delegated to the United States.”

And the 1st Circuit did not find persuasive the AG’s contention that DOMA violates the Spending Clause of the federal Constitution because it “conditions federal funds on the Commonwealth’s violation of . . .  equal protection” rights of same-sex couples.

GLAD did not issue a press statement in response to the attorney general’s action, but the organization’s senior staff attorney Vicki Henry said over the telephone, “It’s another necessary step in the process,” adding, “We are expecting to file our responses  [in support of the appeals court decision] by August 2.”

“We think this case really shows how hard-working people are really affected by DOMA,” she told the Boston Globe. “We hope the harm of DOMA will be stopped.”

“The Defense of Marriage Act is a discriminatory and unconstitutional law that harms thousands of families in Massachusetts and takes away our state’s right to extend marriage equality to all couples,” said Coakley in a statement.

“It is our firm conviction that in order to truly achieve marriage equality, all couples must enjoy the same right and protections under both state and federal law. If the Supreme Court chooses to examine this case, we will look forward to once again making clear that DOMA and its perverse discrimination is unconstitutional and should be ended,” she added.

Filed on Tuesday, July 24, the attorney general’s brief comes on the heels of the Department of Justice’s petition earlier this month, asking the high court to review another legal challenge to DOMA’s constitutionality.

That suit is Golinski v. Office of Personnel Management, a San Francisco case that is currently before the 9th U.S. Circuit Court of Appeals.

Although briefing of Golinksi continues, with oral arguments scheduled for the week of September 10, DOJ has asked the Supreme Court to take up the case anyway.

Earlier this year in a win for gay rights, the 9th Circuit ruled on February 22 that Section 3 of DOMA is unconstitutional, finding the 1996 law “violates [the plaintiff’s] right to equal protection.”

In his opinion, Judge Jeffrey White found that Section 3 could not pass either the “rational basis” or “heightened scrutiny” test. The latter is the more rigorous legal analysis.

The case dates from 2008 when lesbian attorney Karen Golinski, then a 19-year employee of the 9th Circuit, applied for health care benefits for her wife, but was denied the request.

Initially, White dismissed the suit on procedural grounds, but invited Golinski to amend her January 2010 complaint to challenge DOMA Section 3’s constitutionality. She did so on April 14 of that year.

Even before the district court ruling, moreover, Attorney General Eric Holder announced on February 23, 2011 that DOJ would no longer defend DOMA, but would continue to enforce it.

Lambda Legal Defense and Education Fund brought the Golinski case. And in response to DOJ’s request for Supreme Court review, Lambda Legal staff attorney Tara Borelli issued a statement.

“This development highlights the desire by all, the government included, to resolve this issue quickly,” she said. “DOMA’s days are numbered.”

Meanwhile, the Republican-controlled House of Representatives, through its Bipartisan Legal Advisory Group (BLAG), hired an attorney to defend the law in court.

On June 29, BLAG asked the Supreme Court to review Massachusetts.

If the Supreme Court takes up either case (Golinski or Massachusetts) or both in its October conference, oral arguments could take place this fall or winter. Right now the court is in summer recess.

In its filings DOJ said it is seeking Supreme Court review so that the constitutional “question may be settled authoritatively.”

DOJ and Lambda Legal argue that heightened scrutiny, a more rigorous analysis, applies. As DOJ explains in its filings, “Because the denial of federal benefits to same-sex couples who are legally married under their state’s laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment.”

DOJ also points to Section 3’s failure even on the lesser legal analysis of rational basis “because Section 3 is not rationally related to any conceivable legitimate interest of the federal government.”

In its ruling, the 1st Circuit found DOMA unconstitutional by way of rational basis.

Altogether, DOJ argues, “This case squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal distinction among persons who are legally married under their state’s laws on the basis of sexual orientation.”

In another DOMA development during the week of July 16, the American Civil Liberties Union, asked the Supreme Court to consider the case of Windsor v. United States, an appellate case pending in the 2nd Circuit.

There, in New York, a district court also found Section 3 of DOMA to be unconstitutional, ruling on rational basis review that it violated plaintiff (and widow) Edith Windsor’s equal protection rights.  The court ordered her to receive a tax refund of more than $350,000, money she had paid on her late spouse’s inheritance.  If federal law had recognized hers and the late Thea Spyer’s marriage, Windsor would have paid no tax.

The week of July 9, in still another DOMA development, 132 House members filed a friend of the court or amicus brief in the Golinski case. The brief argues that heightened scrutiny applies insofar as gay men and lesbians as a minority group lack sufficient political power to gain favorable treatment by lawmakers.

Additionally, the brief states that gay men and lesbians are, historically, a disfavored minority. Consequently, they are often targeted legislatively on the basis of stereotypes and bias. Therefore, laws like DOMA, singling out gay men and lesbians for harm, warrant judicial skepticism and more rigorous legal analysis and review.

House Minority Leader Nancy Pelosi (D-San Francisco), Representative Jerrold Nadler (D-New York), Democratic Whip Steny Hoyer (D-Maryland), and Assistant Democratic Leader James E. Clyburn (D-South Carolina), among others, took the lead in filing the brief, which highlights that House members are not of one mind on DOMA’s constitutionality.

Joining House leadership in signing onto the brief are openly gay Democratic Representatives Barney Frank (Massachusetts), Tammy Baldwin (Wisconsin), Jared Polis (Colorado), and David Cicilline (Rhode Island).

In more recent developments, DOJ has asked for Supreme Court review in the Massachusetts attorney general’s lawsuit.

Oral arguments in Golinski have been canceled pending Supreme Court action, according to a July 27 blog posting on

Also, in Blesch v. Holder, a lawsuit challenging Section 3 of DOMA as it applies to bi-national couples and immigration, is on hold now, pending 2nd Circuit resolution in Windsor, according to The advocacy organization Immigration Equality filed Blesch v. Holder in New York District Court.

©  Copyright. Chuck Colbert. All rights reserved.

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