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Part 3 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court


By Scottie Thomaston

For an overview of the trial and what was at stake today, click here for a preview piece

For part 1 click here

For part 2 click here

In parts one and two, we heard from the Justice Department and GLAD. The first 18 minutes of argument in the case were not recorded because of an audio malfunction.

Next up is Maura Healey arguing for the Commonwealth of Massachusetts. She argues that the Defense of Marriage Act violates both equal protection principles and state sovereignty found in the Tenth Amendment. On the Tenth Amendment claims says the Defense of Marriage Act makes gay and lesbian couples in Massachusetts “‘sort-of’ married” and that it takes away from Massachusetts a single marital status and requires the state to treat similar people differently based on marital status. This isn’t simply a burden facing all states, she notes, only those who allow their gay and lesbian citizens to marry. The Defense of Marriage Act was passed simply because the federal government “doesn’t like” the fact that gay people are getting married.

Healey calls the step to single out gay and lesbian couples “extraordinary”, claiming that marriage is a matter of “state sovereignty.” Disagreeing with Paul Clement’s assertion that Section 2 of the Defense of Marriage Act which provides that no state “shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage”, provides a right for Massachusetts to define marriage as it sees fit, she points to the ways gay and lesbian couples are adversely affected in the state and says that domestic relationships have always been a province of state sovereignty.

The Commonwealth’s central argument is that “where Congress chooses to use the term marriage, they have to accept state marriage laws under the Tenth Amendment.” According to Healey – who references a historian’s amicus brief – Congress considered a uniform marriage law, early in the 20th century and rejected it because of federalism concerns. She questions why this is happening now only with respect to same sex couples, suggesting that “at every turn” in our history, the federal government recognized valid state marriages, when it was younger people allowed to marry or interracial couples or other groups. The Commonwealth’s argument is for the federal government to return to “what they have always done.” This has been the way the relationship between the states and the federal government has always worked, she asserts to the panel. While conceding that Congress has an interest in making sure couples are economically interdependent, she says the Defense of Marriage Act only excludes same-sex couples from having their marriages recognized and validated.

Turning to the equal protection analysis, Healey says courts should apply heightened scrutiny, asserting that Cook v. Gates does not preclude it. The Cook case did not involve briefing or a decision on heightened scrutiny and therefore reliance on that case is suspicious. And since Cook applied to the military context, it required a different sort of analysis. Regardless of the level of scrutiny, though, the Defense of Marriage Act fails.

Healey then turned to a favorite justification for the Defense of Marriage Act – the “public fisc” claim addressed earlier. If the “public fisc” argument were to succeed, she doesn’t know how it couldn’t be extended to disallowing gays and lesbians from Social Security and other programs for the sake of preserving public money and spending less.

The Defense of Marriage Act presents a clear case of animus directed at a disfavored class, so she argues that the line of cases from Cleburne to Moreno to Romer which seemed to apply a more searching form of rational basis review based on the fact that laws based simply on animus are prohibited should guide the court in its decision here.

The Defense of Marriage Act requires Massachusetts to violate equal protection, she suggests, pointing to the situation in Massachusetts with military burials. Today, gays can serve in military openly, but gay servicemembers cannot be buried with their spouse. Massachusetts is required to separate them into different sections for purposes of burial. At that point, her time ended.

Paul Clement, fresh off his three day oral argument before the Supreme Court on the health care reform law, had reserved some time left after his opening statements. He states that he wants to make “four points” in rebuttal. One is that the Justice Department “declined to answer” whether there is a rational basis for the Defense of Marriage Act. Citing the president’s change of position and the Justice Department’s compliance with the change, Clement suggests that the Justice Department’s previous arguments that there is in fact a rational basis don’t go away now that they changed their minds.

A judge asks about interracial marriage, “if this were about race, what standard of review would apply?” Clement said heightened scrutiny would likely apply. Echoing a question asked by the Ninth Circuit in Perry v. Brown, the challenge to Proposition 8, the judge follows up by asking “why is that different?” Clement answers by saying that the other side tries to draw from the fact that Congress didn’t address interracial marriage. But, he says, in their argument the claim is that Congress would not have the ability to address interracial marriage in the first place, since part of GLAD/the Commonwealth’s argument is that Congress typically leaves marriage up to the states. Clement says that’s wrong; Congress does indeed have the authority to define marriage as they see fit.

Continuing on with the rest of his four points, Clement asserts that some effects of the Defense of Marriage Act are positive for gays and only some are negative if you look at the whole range of federal programs affected by the Defense of Marriage Act’s definition of marriage; so, he claims, there is no animus against gays and lesbians, the Defense of Marriage Act doesn’t “work against homosexuals in every context.”

There is an alternative to “constitutionalizing” these issues, he suggests. There have been many remarkable gains made by gays and lesbians within the democratic process. He asks if we should constitutionalize these issues or just leave them to that process.

And finally, Delery, representing the Government, is given some time to wrap up. Taking on Clement’s claim that the Justice Department’s previous position is somehow relevant to the case, Delery states the fact that no, their position has changed, and the previous briefs are irrelevant.

Regarding the sanctity of the “democratic process”, he says Justice Scalia made the same argument in his dissents in Romer and Lawrence and they were dissents; the Court declined to adopt their reasoning in its cases.

In closing, Delery says that while BLAG has emphasized that it would be new for the federal government to recognize states’ decisions to allow same-sex marriage, the dissenters in Lawrence made that argument as well, and Justice Kennedy, at the end of the decision, responded by saying, “…times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Delery ended by noting, “Within the lifetimes of many people here, gay and lesbian members of our society have increasingly decided to live open and honest lives, including with respect to their personal relationships. They have, in Justice Kennedy’s terms, invoked the constitution’s principles and made a claim to full citizenship. The government should take their claim to equal protection of the law seriously and engage it on the merits; and the president and Attorney General have done that in reaching their conclusion about the constitutionality of the Defense of Marriage Act.”

The court says they’re very appreciative of all parties and the arguments presented; they have learned a lot from the proceedings.


  • 1. rocketeer500  |  April 4, 2012 at 1:20 pm

    Thanks Scottie for summarizing Parts 1, 2, and 3 so well. I couldn't listen to the audio at work, yet with your summary, I am able to completely understand what has occured.

    I guess it's now a waiting game…. waiting for the panel's decision.

  • 2. Jamie  |  April 4, 2012 at 1:22 pm

    I'd love to know the ACTUAL example from Clement on how the Defense of Marriage Act helps gay people.

  • 3. Sagesse  |  April 4, 2012 at 1:39 pm


  • 4. Sam  |  April 4, 2012 at 1:39 pm

    The (non-facetious) answer is probably in terms of meeting thresholds for federal programs helping the poor, at least in some cases, because since we're not counted as "married" for federal purposes our true income may in fact be higher than we report as an individual. But how that's "equal protection"–or to count the emotional and societal and non-financial questions–is a whole 'nother factor.

  • 5. Scottie Thomaston  |  April 4, 2012 at 1:45 pm

    It was so hard to listen to. Not only was it crappy audio but with the first 18 minutes missing, some of it was out of context.

    Yep, waiting game starts now.

  • 6. Scottie Thomaston  |  April 4, 2012 at 1:45 pm

    I was wondering that, too. I guess he might have elaborated in the missing 18 minutes.

  • 7. Sam  |  April 4, 2012 at 1:46 pm

    Does anyone have a sense of how long it'll take the 1st Circuit to rule? I understand courts never say, but is there a general pattern for the 1st Circuit? Other appeals courts I'm familiar with tend to take ~3 or 4 months, maybe. In some ways it doesn't matter–the Supreme Court isn't in session over the summer, so the earliest they'd consider a cert petition is late September–but I'm still very interested to know how long we have to wait.

  • 8. Kathleen  |  April 4, 2012 at 1:54 pm

    I think there are some cases where couples filing as two single individuals might get a federal tax advantage over filing as a married couple. I'm not familiar enough with tax code to give specifics, but I recall someone once pointing out a situation where that would be the case.

  • 9. Roque Neto  |  April 4, 2012 at 1:55 pm

    Good question.

  • 10. Marta  |  April 4, 2012 at 2:00 pm

    But I think straight couples can decide to file taxes separately when it benefits them. For tax purposes, filing as a married couple is just an option.

    So the only benefit of DOMA would be for programs where you must declare whether you are married or not.

  • 11. Larry  |  April 4, 2012 at 2:19 pm

    I'm also interested in how the judges appeared. In the Perry appeal, the Ninth Circuit Judges (especially Reinhardt) seemed to telegraph that they might certify a question to the CA Supreme Court about standing. They also seemed to telegraph they might issue a narrow decision based on Romer because a right was taken away (all but asking Olson if a narrow decision tailored to California would be acceptable), and in the end that's what the final decision looked like.

    Was there any indication of what issues the First Circuit seemed to focus on, or how persuading they found Cook v Gates as precedent or how much they questioned Clement about his rational basis arguments?

  • 12. Kathleen  |  April 4, 2012 at 2:22 pm

    Is it the case that married filing separately works out the same as both filing as single? Then there's the situation where one spouse might qualify for "head of household" status if unmarried. I know that qualifies for a greater standard deduction.

    Point is, I'm sure there might be some cases where there's an advantage to not being treated as married. But that hardly balances out the fact that the government is forcing a married couple to be 'unmarried' for federal purposes. Even if you do an disadvantage/advantage fiscal analysis (and, clearly, there's more at stake here than that), I doubt the balance comes anywhere near even.

    IMO, Clement was grasping at straws when he made this argument. Would anyone claim that the anti-miscegenation laws couldn't be considered as disadvantaging people of color because in some cases it was to certain individuals' financial advantage to remain unmarried? Of course not.

  • 13. Kay in Montana  |  April 4, 2012 at 2:40 pm

    Scottie, thank you for your excellent series of reports.

  • 14. Adam Bink  |  April 4, 2012 at 2:42 pm

    Hats off to Scottie for furious, long typing and listening to the audio of this for everyone to read. Transcribing audio is NOT easy and NOT fun.

  • 15. Steve  |  April 4, 2012 at 2:45 pm

    Very generally, if both partners work and have similar incomes, their total income is obviously lower when filing separately. Whereas if only one works and they can combine their incomes, the total tax burden is lowered

  • 16. Mtn Bill  |  April 4, 2012 at 2:45 pm

    As for the IRS, it depends. If a couple files as married, separated, they loose several benefits. For example, what's allowed to be deducted in a 401(k), I believe. Then there is the complication of community property states, like California, where income can be divided equally. This option is not available in most states. The answer to the question, depends upon the couple's financial status, and location. Then there is also the marriage penalty, whereby married couples may pay a higher tax than single. Ah the joys of a progressive income tax system, loaded with behavior and welfare provisions.

  • 17. Str8Grandmother  |  April 4, 2012 at 2:53 pm

    New Recording is Posted at the court website. I just got an e-mail from the Court that they swapped out files and have posted a new and improved recording. I only listened to the first minute but it is a LOT better than the first recording they put up. You have to close all your browsers, then re-open.
    It takes a long time to load, patience is required.

    Link to Court web page

    They had a better version and responded to my complaint.

  • 18. Prop 8 Trial Tracker &raq&hellip  |  April 4, 2012 at 2:53 pm

    […] To read Part 3 click here […]

  • 19. Scottie Thomaston  |  April 4, 2012 at 2:55 pm

    Especially THIS audio.

    They really need to make sure they're not mumbling loudly really close to the mic for these things. I kept having to repeat it because it was nearly impossible to decipher what they were saying. Sheesh!

  • 20. Mtn Bill  |  April 4, 2012 at 2:56 pm

    A better example would be for married filing separate is that if one spouse itemizes, the other must also itemize, rather than take the standard deduction. Married filing separately, in my opinion, is not the best tax filing status. All this may change with the 2013 tax year when Congress gets to argue all the expirations of the various tax measures for the past decade.

  • 21. Sam  |  April 4, 2012 at 3:06 pm

    But no 18 minutes! Gah!

  • 22. Rich  |  April 4, 2012 at 3:16 pm

    Add a half minute and I'm reminded of Rosemary Woods and Watergate! Yikes, she's back to haunt us!

  • 23. Scottie Thomaston  |  April 4, 2012 at 3:25 pm

    Oh NOW they give us a better one. 😛

  • 24. rocketeer500  |  April 4, 2012 at 3:25 pm

    That's exactly was my husband and I discovered last year. I can't speak for the Federal, but at least for the State of California, my husband and I saved several hundred dollars by filing separately, instead of filing married-joint. We calculated it both ways and figured it was better to file married, filing separate.

  • 25. Sam  |  April 4, 2012 at 3:26 pm

    I wish I could distinguish between the male judges voices–we definitely have one (Torruella?) but I'm wondering if we actually have both. The Chief Judge (Sandra Lynch) doesn't seem to tip her hand either way.

  • 26. Sam  |  April 4, 2012 at 3:27 pm

    Also, Bonauto getting away scot-free with barely no questions seems to me to speak well, as she herself said in the press conference.

  • 27. Sam  |  April 4, 2012 at 3:31 pm

    Lynch's comment on the end that "we've learned a lot" is very interesting….in some ways she seems like the most conservative of the 3.

  • 28. Scottie Thomaston  |  April 4, 2012 at 3:44 pm

    Hey Kay!

    Thanks for reading! It's been an exciting day. Can't believe I pulled this off with the busted audio.

  • 29. Str8Grandmother  |  April 4, 2012 at 3:56 pm

    Rich, it is so funny that you would mention the Nixon tapes because I said the same thing almost verbatim when I protested loudly about the audio. I sent my e-mail about 2pm eastern time and shortly before 6pm they wrote back and apologized and said they put up a quote, "new and improved" file so somebody must have worked on it in the afternoon.

    My e-mail was strongly worded, and probably they got a lot of complaints like mine.

  • 30. Glenn I  |  April 4, 2012 at 4:16 pm

    "Clement answers by saying that the other side tries to draw from the fact that Congress didn’t address interracial marriage. But, he says, in their argument the claim is that Congress would not have the ability to address interracial marriage in the first place, since part of GLAD/the Commonwealth’s argument is that Congress typically leaves marriage up to the states. Clement says that’s wrong; Congress does indeed have the authority to define marriage as they see fit."

    So Clement says there is no prohibition under the constitution to Congress enacting federal laws that discriminate against interracial heterosexual marriages. Huh. Just because Congress hasn't done it, doesn't mean they can't. Wow. That's provocative.

  • 31. John D  |  April 4, 2012 at 4:17 pm

    My understanding is that while there are reasons for married couples to file their own returns, it usually involves separate property that they brought into the relationship. (Disclaimer: I am not a tax professional.) That's what I've read at least.

    The so-called "marriage penalty" can't be evaded simply by filing separately.

    However, a same-sex couple who would be paying the marriage penalty (my husband and I, for example) do not because we have to file our federal returns as single individuals. I suppose it could be said that the tax code "helps" us, since we get to keep some cash.

    Of course, in past years we were well aware that we were paying more as single individuals (a mortgage, I was back in school) than we would have if we were married. It's an idiotic argument on Clement's part.

  • 32. John_B_in_DC  |  April 4, 2012 at 4:19 pm

    Ugh, I wish we could get this resolved once and for all. For the second year in a row my husband and I will be required to file as "single" on our federal tax forms even though we are legally married in the District of Columbia. And of course to rub salt in the wound, we have to sign the form affirming that everything on it is true to the best of our knowledge. Well, it's not true but we're in legal trouble if we file as "married". We are very tempted to file a joint tax return as a married couple this year anyway. Our taxes would be much more favorable as a married couple but it's not just about the money, it's the principle of the thing.

  • 33. Kathleen  |  April 4, 2012 at 4:28 pm

    This is actually a pretty standard ending comment from a judge – thanking the attorneys and saying it was "well argued" or "very informative" etc.

  • 34. Ray in Sacramento  |  April 4, 2012 at 5:12 pm

    Does D.C. have community property? Here in California, which is a community property state, my husband and I have to split our income on a federal return as if we were married, but we can't file jointly. It really gets confusing and complicated with IRAs and Social Security. Luckily the state recognizes our marriage (2008) and we can file a state return jointly.

    Maybe every same-sex couple, in a community property state, should file a lawsuit against DOMA because we are forced to file separate federal returns and split community property income and are not given the option of filing a joint return like opposite sex couples can.

  • 35. John_B_in_DC  |  April 4, 2012 at 5:38 pm

    No, but we own property together, including a basement apartment from which we have joint income (and joint expenses & depreciation) and everything has to be divided up. He does our taxes (I love my husband! He does his divorced parents' taxes as well…) and Turbotax works reasonably well for our situation but it's still quite a nuisance. Our incomes are quite disparate (he makes about twice as much as I do), and last year my husband had a capital gains windfall that is going to really hit him up for taxes. We haven't filled out a "dummy" joint return yet but it looks like our taxes would probably be a lot lower.

    BTW last year he had to pay a couple thousand dollars in taxes on health insurance benefits the private company he works for provided to me the previous year as his spouse, but which the federal government considers taxable income. In part because of that, it made more sense for me to go back on my employer's health plan–and since I'm a federal employee, guess who's paying for it?

    What if every legally married same-sex couple filed a joint federal return as a married couple? What could the IRS do if thousands of couples did this? At the very least, it would start moving a few more constitutional challenges through the courts, no?

  • 36. Mike  |  April 4, 2012 at 5:56 pm

    Clement stated "the Defense of Marriage Act doesn’t 'work against homosexuals in every context.' ”

    Which is an implicit statement that the Defense of Marriage Act does work against homosexuals in at least some contexts. Clement just doesn't want to state where is does, and where it doesn't, work against homosexuals.

  • 37. chiefscribe  |  April 4, 2012 at 6:26 pm

    We were sorely tempted by the methods this year.

  • 38. Richard Lyon  |  April 4, 2012 at 7:45 pm

    Rosemary Woods has come back from the dead and erased the tape.

  • 39. MightyAcorn  |  April 4, 2012 at 9:14 pm

    I bet those 18 minutes include Richard Nixon saying something incriminating…oh wait, wrong lost 18-minute government recording, sorry. 😉

  • 40. MightyAcorn  |  April 4, 2012 at 9:16 pm

    Maybevit was the same faulty tape recorder. 😉

  • 41. John_B_in_DC  |  April 5, 2012 at 6:16 am

    Here is the advice from that we will probably follow–in a nutshell, file as "single" but with a disclaimer attached, and follow up with an amended tax return (which we will hold off on for a year or two, hopefully seeing DOMA dead by then, one way or another):

    How can you affirm your marital status, object to DOMA, file a joint return, and not be subject to penalties? Here are the safest possibilities:

    File two single returns (including the attachment affirming the marriage) and then file an amended return, filing jointly. The amended return is a 1040X. This is what the plaintiffs in the GLAD case did. Once the IRS rejects the amended return, or if six months passes and they do nothing, the taxpayers who file an amended return have the right to file suit in federal district court claiming the refund. The amended return serves as a claim for refund and it must be filed within three years of when you filed the return for that year (April 15th is the operative date if you filed early).

    The basis of the claim for refund is that you are legally married in the state of your marriage, that the federal government should recognize that marriage, and that DOMA is unconstitutional. This option would avoid penalties because your original return would be filed according to the statute.

    The problem with this option is that if the IRS does reject the amended return you have to consider filing suit in federal district court to obtain the refund. Suits for refunds must be filed within two years of the denial of the claim. This time period can be extended with the consent of the Secretary of the Treasury.

  • 42. Lymis  |  April 5, 2012 at 6:42 am

    Racial segregation didn't work against African-Americans in every context either. But things like having shorter lines at "colored-only" water fountains don't even begin to outweigh pesky things like being shut out of jobs, homes, public accommodations, good schools, and so on.

    And even if segregation or anti-gay laws convey some sort of benefits here and there, it STILL isn't the right of the majority to decide that for their minority fellow citizens. Being equal means being equal, and if there is any bad, we'll deal with it along with the good.

  • 43. John_B_in_DC  |  April 5, 2012 at 7:02 am

    BTW off-topic but I found this commentary in the Salt Lake Tribune interesting, not for its call for the LDS church to recognize same-sex marriages (I don't care whether or not the LDS, Catholic, or any other church recognizes same-sex marriage, I'm only concerned with CIVIL marriage) but for the fact that the writer was a volunteer for the organization campaigning AGAINST same-sex marriage in Maine three years ago:

    This kind of thing really gives me some hope for the future.

  • 44. AnonyGrl  |  April 5, 2012 at 7:17 am

    That the phrase "in every context" was added simply negates any claim that there is a point in keeping DOMA. If it works against homosexuals as a class in ANY context, it needs to be overturned. Period.

  • 45. AnonyGrl  |  April 5, 2012 at 7:19 am

    But the transcripts should be available at some point, no? At least we can READ what he said and find out if he does try to enumerate where DOMA supposedly does not "work against homosexuals".

    Really one of the worst arguments I have heard lately for keeping discriminatory laws in place. I do hope the judges see it as just as bad as I do.

  • 46. Sheryl_Carver  |  April 5, 2012 at 8:52 am

    If I understood Kathleen's earlier comments correctly, the audio recording is the ONLY record available, so no transcript other than what might be transcribed from what exists of the audio recording.

  • 47. Kathleen  |  April 5, 2012 at 8:52 am

    Sadly, no. Per the clerk's office, the audio recording is the only record of the arguments.

  • 48. Sheryl_Carver  |  April 5, 2012 at 8:53 am

    From the San Francisco Chronicle this morning, in another DOMA case here in San Francisco:

  • 49. Walter  |  April 5, 2012 at 9:22 am

    This guy doesn't just talk about marriage equality – he's on a crusade for it. Here's a link to his Facebook page. He's written a book about it and blogs about it. He's a graduate of BYU, including a law degree from there.

    He, also, has a blogging webpage.

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