DOJ files opening Brief in DOMA Lawsuit

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January 19, 2011
By: Joe Siegel/TRT Reporter
The United States Department of Justice (DOJ) on January 13 filed its opening brief at the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders’ (GLAD) challenge to the Defense of Marriage Act.

The government’s appeal follows a decision issued on July 8, 2010 by federal District Court Judge Joseph L. Tauro in favor of GLAD’s plaintiffs, seven married couples and three widowers, who have been denied access to federal programs because of DOMA. In that decision, Judge Tauro concluded that DOMA is unconstitutional.

GLAD filed the Gill case on the grounds that DOMA Section 3 violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees and the issuance of passports. The passport issue was resolved in 2009 when the State Department changed its policy.

According to the brief: “Congress’s decision to enact DOMA was not unconstitutional under this Court’s binding precedent. With respect to the Gill plaintiffs’ equal protection challenge and Massachusetts’s Spending Clause unconstitutional condition challenge, DOMA is rationally related to legitimate governmental interests. Congress passed DOMA in 1996, at a time when states and their citizens were just beginning to address the issue of marriage rights for same-sex couples. Since that time, some states have enacted statutes or issued court decisions that permit same-sex couples to marry, and other states have promulgated statutes or constitutional amendments that define marriage as between a man and a woman. Other states do not allow same-sex couples to marry under their own laws, but nonetheless recognize same-sex marriages from other states. DOMA, which implicates over 1,000 federal laws, reflects Congress’s reasonable response to this still-evolving debate among the states regarding same-sex marriage.”

The brief goes on to say that Congress enacted DOMA “as a means to preserve the status quo, ensure consistency in the distribution of federal marriage-based benefits, and respect policy developments in the states without implicating other states or the United States, pending the resolution of the debate taking place in the states over whether to permit same-sex marriage.”

“We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court,” said Mary L. Bonauto, who is leading the DOMA team for GLAD. “We’re prepared to meet these arguments head-on, and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs and that DOJ has admitted is caused by DOMA.”

“As we argued, maintaining the ‘status quo’ sounds a lot like keeping discrimination in place against gay and lesbian couples,” said Jansen Wu, a staff attorney for GLAD.

Wu explained that prior to the passage of DOMA, the federal government always deferred to state definitions of marriage.

“It was really DOMA that upset the status quo by changing that rule for the first time in our country’s history,” Wu noted.

Section 3 of the DOMA law states that only a marriage between one man and one woman will be recognized for federal purposes.

The DOJ brief notes that President Obama “supports repeal of DOMA and has taken the position that Congress should extend federal benefits to individuals in same-sex marriages. But a consensus behind that approach has not yet developed, and Congress could properly take notice of the divergent views regarding same-sex marriage across the states”

Co-counsel in the Gill case included attorneys from the firms Foley Hoag LLP, Sullivan & Worcester LLP, Jenner & Block LLP, and Kator, Parks & Weiser, PLLC.