Part 3 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court
April 4, 2012
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.