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GLAD files brief in Gill v. OPM case

DOMA trials Gill/Massachusetts

By Adam Bink

This is the case in which Judge Tauro struck down DOMA.

GLAD tells me that arguments before the Court of Appeals could take place as early as January 2012. Brief:

[scribd id=70587182 key=key-1jal2ou0oj7soki13iox mode=list]

And the Massachusetts brief:

[scribd id=70566317 key=key-2hvq36wm5j9trx80sspo mode=list]


  • 1. Alan_Eckert  |  October 27, 2011 at 2:04 pm

    Reading it now. I like the part where they quote congressmen. No animus, indeed.

  • 2. DaveP  |  October 28, 2011 at 10:18 am

    Indeed. Who would have thought that the words of Jesse Helms would become one of our assets in the fight to end discrimination? In recent years, as the public gains acceptance and understands the truth about LGBT Americans, politicians and groups like NOM have learned that they now have to choose their words carefully and avoid the worst types of blatantly hateful propaganda. But now, all of that hate-filled anti-gay grandstanding that they spewed in past years is coming back to haunt them. And it will help us win case after case after case.

  • 3. Leo  |  October 27, 2011 at 2:08 pm

    But this is Maccashusetts' brief, not GLAD's?

  • 4. Kathleen  |  October 27, 2011 at 2:16 pm

    That's right, Leo. We're still waiting for GLAD's brief.

  • 5. Kathleen  |  October 27, 2011 at 2:09 pm

    This isn't the brief from GLAD; we're still waiting for that. This is the brief from the Commonwealth of Massachusetts.

    The two cases have been consolidated for purposes of scheduling, but the arguments are different. In this, the Commonwealth argues based on the state's interests. In Gill (the GLAD case), the arguments are based on the interests of individual plaintiffs.

  • 6. bjasonecf  |  October 27, 2011 at 2:10 pm

    You beat me to it! 🙂

  • 7. Kathleen  |  October 27, 2011 at 2:20 pm

    BTW, the reason Jason and I refer to these as the Mass DOMA cases is because they've been consolidated and the schedules follow an identical track, but they are two different cases with different arguments.

    Just an fyi for everyone, there's a third case – Hara v. OPM (case number 10-2214) which is a cross-appeal of the dismissal of plaintiff Hara's complaint. The arguments in Gill and Hara are generally both covered in GLAD's briefs.

  • 8. Sam  |  October 27, 2011 at 2:31 pm

    Oh, that makes so much more sense, thank you. I was wondering why there was so much 10th Amendment, so little equal protection….

  • 9. Ann S.  |  October 27, 2011 at 2:10 pm


  • 10. Ronnie  |  October 27, 2011 at 9:21 pm

    = …. ; ) …Ronnie

  • 11. Sam  |  October 27, 2011 at 3:21 pm

    Seems like a good brief, with the possible (?) exception of stating that the Court doesn't need to consider heightened scrutiny. I also get a little queasy around the 10th Amendment arguments (in the fear that Kennedy will run with that and we'll have a patchwork instead of a constitutionally recognized right), but it makes perfect sense with Massachusetts as the plaintiff here.

  • 12. Kathleen  |  October 27, 2011 at 3:58 pm

    They do argue that DOMA should be subjected to heightened scrutiny but say that the Court needn't consider the statute under heightened scrutiny in order to determine that it is unconstitutional. This posture comes from the fact that the 1st Circuit (where this case is being heard) has precedent that establishes laws that discriminate against Gs&Ls need only pass rational basis review.

    It generally takes en banc review to change that kind of precedent within a specific circuit. Here, the Gill plaintiffs petitioned the Court, asking that this case skip the panel review and go straight to en banc review in order to consider this question of level of scrutiny, but the Court denied the request.

    Plaintiffs here seem to be kind of skirting this issue of precedence by saying that the case which establishes this precedent didn't really set this precedent, as it didn't fully consider all the issues involved in determining level of review. Or at least that's how it reads to me after a quick skim.

  • 13. Sam  |  October 27, 2011 at 5:10 pm

    Right, right, the 3-3 denial of initial en banc hearing. And you're absolutely right, they're trying to distinguish it from Cook in the 1st Circuit by saying (correctly) that the Circuit didn't actually do any analysis about scrutiny, just assumed it to be true. And DOJ's kind of cleverly saying that their military-is-different-from-civilian analysis applies in our favor here (though it was annoying to see them argue that in the LCR case in July/August).

    I do wonder what the split denial of en banc means….are the 3 judges who voted no inclined to vote no on the merits, or just didn't want to speed up the process? And the same in reverse for the 3 in favor. Do we know what the panel looks like yet?

  • 14. Joe  |  October 27, 2011 at 4:20 pm

    Why doesn't GLAD and the state of Massachusetts contest standing? BLAG represent the House but the House itself does not make law instead it take the Congress. What is the opinion of the Senate's Counsel? Also, will this automatically go en banc or in front of a 3 judge panel? And what are the chances the Court will address Section 2 of DOMA sua sponte?

  • 15. Kathleen  |  October 27, 2011 at 4:48 pm

    BLAG has been allowed to intervene as a defendant-intervenor (permissive intervention). Because the Executive Branch (represented by DOJ) has remained a party to the appeal, the BLAG needn't establish independent standing.

    There is no automatic en banc review. The only guaranteed appeal is that by the 3 judge panel. As I explained above, Gill plaintiffs asked that this skip the 3 judge panel and go straight to en banc review, but the Court denied that petition. That doesn't stop them from asking for en banc review again if the panel rules against them.

    As to the question about whether the Court will address Section 2 on its own, I'd say the chances are slim. Generally, federal courts don't like to take up issues that they haven't been asked to rule on and the arguments for and against Section 2 are going to be different than those for Section 3.

  • 16. Kathleen  |  October 27, 2011 at 4:42 pm

    UPDATE: Mass DOMA cases

    Gill Plaintiffs Response Brief

  • 17. Cat  |  October 27, 2011 at 6:11 pm

    I like it! It wipes the floor with BLAG's arguments, and really shows how inappropriate, irrational, mean-spirited, sweeping and discriminatory DOMA Section 3 is.

  • 18. Leo  |  October 28, 2011 at 4:42 am

    Something is troubling me about Massachusetts' Tenth Amendment argument:

    DOMA violates the Tenth Amendment because it usurps the Commonwealth’s exclusive authority to determine the marital status of its citizens for both federal- and State-law purposes.

    I don't know if this is correct or not, but let's assume Massachusetts wins this argument. By the same logic, wouldn't the Respect for Marriage Act also violate the Tenth Amendment? RFMA goes beyond simply repealing DOMA and also makes it so that, for example, a gay couple married in New York and living in Texas will have their marriage federally recognized, even though the state considers them unmarried. Well then, does Texas have the exclusive authority to determine the marital status of its citizens for federal-law purposes? And if not, why does Massachusetts?

  • 19. Sam_Handwich  |  October 28, 2011 at 5:03 am

    I think your question is more related to the Full Faith and Credit clause of the constitution.

  • 20. Leo  |  October 28, 2011 at 6:34 am

    Is it? I'm not talking about whether Texas has to recognize their marriage. I'm assuming that it doesn't, just like now. Massachusetts claims that it has the exclusive authority to determine the marital status of its citizens for federal-law purposes (in the case of Gill plaintiffs, that they are married for federal-law purposes). I'm saying that using the same logic, Texas would have the exclusive authority to determine the marital status of its citizens for federal-law purposes (in the case of my hypothetical couple, that they are not married for federal-law purposes).

    Put differently, if Massachusetts is right that Massachusetts citizens are married under federal law if and only if Massachusetts says they are married, then it must also be true that Texas citizens are married under federal law if and only if Texas says they are married. But RFMA says otherwise.

  • 21. Steve  |  October 28, 2011 at 12:48 pm

    The RFMA does nothing of the sort. It also gets rid of Section 2 of DOMA. But Section 2 merely "allows" states to disregard same-sex marriages from other states. Getting rid of that doesn't automatically mean that out-of-state SSM will be automatically recognized elsewhere. The state DOMAs are still in effect.

    I've also seen pro-gay organizations argue that the Full Faith and Credit clause only speaks of "acts" and "judgments" and thus doesn't apply to marriages, because marriage is a status

  • 22. Leo  |  October 28, 2011 at 12:51 pm

    Sure it does.

    b) amends Section 7 of title 1 in the United States Code to read:
    (a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. (b) In this section, the term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

    To clarify, yes, state DOMAs would still be in effect, but it would extend federal recognition regardless of where the couple lives.

  • 23. Sam_Handwich  |  October 29, 2011 at 7:08 am

    "Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."

    I am by no means a legal scholar, but isn't the "records" part of the FF&C clause what makes birth certificates and things like drivers' licenses valid from state to state? And isn't a marriage a licensed status?

  • 24. Larry  |  October 28, 2011 at 7:48 am

    Here's how I think it would work. If this argument works, a same sex married couple in Massachusetts would be married for both state and federal purposes. If they moved to Texas, they'd keep their federal status. That is, they'd qualify for social security benefits, joint federal tax returns, but would no longer qualify for state benefits like joint state tax returns, state health insurance, etc. It sucks, but is the logical conclusion to Massachusetts argument here.

    I do think this would be a natural argument in favor of getting rid of Section 2 of DOMA or invalidating all the state DOMAs. Just like the federal goverment is currently discriminating by splitting Massachusetts married couples into 2 classes, the state of Texas would now be discriminating by splitting couples the federal government considers married into 2 classes. Not so much full faith and credit as federal supremacy. But I'm not a lawyer.

  • 25. Larry  |  October 28, 2011 at 7:54 am

    To clarify what I said, even though the couple moved to Texas, they still have ties to Massachusetts. It was a Massachusetts official who married them under Massachusetts law, so even though they've moved to a different place, the marriage license remains on file in Massachusetts. The federal government would continue to recognize that as a legal Massachusetts document. Same as the federal government recognizes my NY birth certificate no matter where I live.

  • 26. Cat  |  October 28, 2011 at 8:29 am

    That sounds reasonable; the fact that a state issued you a marriage license still stands. If you live in Texas, when file your taxes with the IRS you can say: we're married in Massachusetts. But if Texas is dispensing federal benefits it becomes complicated. Doesn't the Commonwealth of Massachusetts case explicitly deal with these kinds of issues, where the state is managing things that are federally funded?

    Of course I'm of the opinion that Texas just has to accept the Massachusetts marriage as far as federal money goes, but they might not see it that way…

  • 27. Larry  |  October 28, 2011 at 8:40 am

    Hmm, that does complicate it. Right now the federal government can threaten to withhold money from MA for not honoring the federal determination of who's married when MA is managing federal benefits. For instance if MA allows a gay couple to be buried in a federal veteran's cemetery. Presumably in the future the federal government can threaten to withhold money from TX for the same reason if TX doesn't recognize a same sex marriage solely for federal benefits. TX would, at least initially, be allowed to ignore the marriage for anything that is purely state-level

  • 28. Elizabeth_Oakes  |  October 28, 2011 at 9:00 am

    …which then raises the topic of divorcing in Texas, something they've already said they won't allow the state to do since they won't recognize same-sex marriages on the state level (btw, is that suit still in appeals? I seem to recall it resolved unfavorably for the gay couple involved.) Since most states have a residency requirement for divorces, this federal/state double standard would constructively deny same-sex couples the right to divorce. You'd think the haters would love that ( though they don't much seem to be pushing for it for themselves, I notice.)

  • 29. Leo  |  October 28, 2011 at 10:22 am

    They may have ties to Massachusetts, but they would be Texas citizens. And federal benefits turn on marital status, not on the existence of a marriage license. Let me try to explain again what I'm saying:

    What Massachusetts is arguing now: Judge, these are our citizens. Only we get to decide if they're married or not. We've decided they're married. By treating them as unmarried, the federal government is usurping our authority. Make them stop!

    What Texas might be arguing if RFMA becomes law: Judge, these are our citizens. Only we get to decide if they're married or not. We've decided they're not married. By treating them as married, the federal government is usurping our authority. Make them stop!

  • 30. Steve  |  October 28, 2011 at 12:52 pm

    That issue isn't explicitly tied to the RFMA act though. It will also exist if this case prevails at the Supreme Court

  • 31. Leo  |  October 28, 2011 at 1:04 pm

    I don't see how. As I understand it, if this case prevails (DOMA is struck down) without any further legislation, then the federal government will treat the couple as married while they live in Massachusetts but unmarried while they live in Texas. Neither Massachusetts nor Texas could then claim that the federal government is usurping their authority.

  • 32. Steve  |  October 28, 2011 at 2:25 pm

    No, but the issue of people being treated unequally state vs federal government still exists

    Yeah, they couldn't use a specific argument in certain court cases, but that's really besides the point. The underlying problem is the same and could come up in other contexts

  • 33. Larry  |  October 29, 2011 at 6:54 am

    There should be precedent for how the federal government does this.

    1) Interracial marriage pre-Loving. If an interracial couple got married in Massachusetts and then moved to Virginia, would the federal government still recognize their marriage even though the state they lived in no longer did?

    2) Underage marriage. New Hampshire's age of marriage is 14 w/ parental consent. If a 14 y/o couple married in NH and then moved to Kentucky where the age is 16 w/ parental consent, would they remain married by state law or federally?

    3) Distant relatives. First cousins can marry in some state but not others. A pair of first cousins marries in New York, where it's allowed, then moves to Pennsylvania, where it's not. Would they remain married under Pennsylvania law? Federal law?

    I honestly don't know the answer to these questions. But it seems that however it works currently would be strongly related to how it would continue to work, at least for federal marraige recognition.

  • 34. Ann S.  |  October 29, 2011 at 8:34 am

    Pre-Loving, my parents' marriage was not recognized in all of the states where we lived, but I believe the federal government recognized it all the same.

  • 35. Ronnie  |  October 28, 2011 at 8:40 am

    "Paul & Jeanette Rediker – Why Marriage Matters Maine"…… <3…Ronnie:
    [youtube k4XxherYUoA youtube]

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