Sign Up to Receive Email Action Alerts From Issa Exposed

Part 1 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court

DOMA trials Gill/Massachusetts

By Scottie Thomaston

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

The First Circuit has just wrapped up its oral arguments in Gill v. OPM/Massachusetts v. HHS, the first challenge to the Defense of Marriage Act that has reached an appeals court and a possible vehicle for a future Supreme Court challenge to the discriminatory Act. As we noted yesterday, P8TT was not in Boston to cover the hearing due to the court’s ban on electronic devices in the courtroom. The audio from the hearing is now up on the court’s website, however there is a notice that because of a technical malfunction, the first 18 minutes were not recorded. We will keep checking back for updates and to see if the issue was resolved.

I’ll split the arguments up into separate posts. First up is the DOJ.

Acting Assistant Attorney General Stuart Delery’s argument

Arguing for the Justice Department, Acting Assistant Attorney General Stuart Delery of the Civil Division of the DOJ says that the Government’s position is that the Defense of Marriage Act cannot be defended on any basis, whether under rational basis review – the most relaxed standard of review and one that most laws pass – or some form of heightened scrutiny. The DOJ of course decided back in February of last year that laws targeted at gays and lesbians should be reviewed under heightened scrutiny. Delery was questioned by a judge about what should happen under rational basis review, and he informed the judge that the DOJ takes no position on that question.

Delery goes through the listed justifications for the Defense of Marriage Act, first discussing ‘traditional notions of morality.’ He points out that at least since Lawrence v. Texas, traditional notions of morality can’t be used by themselves to justify laws. Making the point that the law is based on animus for gays and lesbians – another prohibited basis for lawmaking – he quotes Romer v. Evans and US Dept. of Agriculture v. Moreno‘s proposition that a “bare… desire to harm a politically unpopular group” is not a legitimate state interest for a law to be sustained under rational basis review, let alone something that would pass a more heightened form of scrutiny.

Delery then discusses the next purported justification for the Defense of Marriage Act: child-rearing. Conceding that “creating a stable environment for procreation and child-rearing” is an important governmental interest and that many laws are structured particularly to facilitate those ends, he tells the judges that there’s no reason to believe that the same-sex parents who are married under state law as the Gill plaintiffs are should be considered less than fully capable parents. He points to studies that show children raised by same-sex parents are just as likely to be happy and successful as those raised by opposite-sex parents.

Aside from that, he tells the panel of judges, same-sex couples who are married are disallowed government benefits because of the Defense of Marriage Act but there are no attempts made by the government to assure married opposite-sex couples will procreate before they gain access to their benefits. Married opposite-sex couples are entitled to government recognition of their relationships whether or not they meet that particular burden.

If that isn’t enough, Delery then makes the point that denial of benefits and recognition to same sex married couples has a strong potential to destabilize their familial relationship on its own. If the goal is to provide stability to married couples to produce a favorable environment for successfully raising children, the Defense of Marriage Act itself makes that goal less obtainable.

Moving on to the Tenth Amendment claims brought in the case – that the Defense of Marriage Act hurts states’ interests in determining their own marriage laws, something that has traditionally been the states’ concern – Delery tells the panel that the Government’s position is that the Tenth Amendment doesn’t provide an independent basis to strike down the law, nor does the Spending Clause of the US Constitution. The DOJ says the law violates the Equal Protection Clause and equal protection principles in general. The DOJ disagrees that DOMA intrudes on states’ authority regarding marriage, instead offering that what DOMA actually does is defines the scope of federal programs in providing certain benefits to married couples.

As expected, the First Circuit case Cook v. Gates made its appearance in questions from the panel. Judges in that case declined to apply any form of heightened scrutiny for several reasons: it wasn’t clear that Romer or Lawrence indicated that anything but the lowest form of scrutiny, rational basis, should apply. Also, Cook was a military case involving Don’t Ask, Don’t Tell, and courts generally give a lot of deference to the military in those cases. Asked why Cook should not determine the type of scrutiny the First Circuit will apply in its decision in Gill, Delery first points to Cleburne v. Cleburne Living Center, a case which raised the possibility of some form of enhanced rational basis scrutiny rather than a more easily passable test. Delery mentions, importantly, that no change has been made to the standard of review for laws affecting gays and lesbians in over 20 years, despite the fact that the legal landscape has changed dramatically. Bowers v. Hardwick, decided in 1986, was relied upon in the 1990s to deny heightened scrutiny to laws affecting gays and lesbians, but that case was overruled in 2003 in Lawrence v. Texas, so it’s no longer applicable. Delery closes by acknowledging that the Supreme Court has yet to confront whether gays and lesbians can be considered a suspect class.

To read Part 2 click here


  • 1. Sagesse  |  April 4, 2012 at 10:10 am


  • 2. Richard Lyon  |  April 4, 2012 at 10:27 am

    Now that is what I would call impressive legal reporting.

  • 3. Stone  |  April 4, 2012 at 10:33 am

    Breathlessly awaiting the remaining posts, as well as the missing audio. If the audio proves unrecoverable at least there will be a transcript. Thank you for all you’re doing.

  • 4. Fan  |  April 4, 2012 at 10:35 am

    I'm a little surprised that " The DOJ disagrees that DOMA intrudes on states’ authority regarding marriage, instead offering that what DOMA actually does is defines the scope of federal programs in providing certain benefits to married couples." Isn't it true that by denying federal programs the DOJ indirectly intrudes on states' authority on marriage. I could see that's more related to the equal protection clause though.

  • 5. Mackenzie  |  April 4, 2012 at 10:57 am

    I could see the argument that this doen't directly impede on a states right though as far as section three is concerned. However, I would still consider section 2 of DOMA to be an infringment. Then again, I am no legal scholar.

  • 6. Lymis  |  April 4, 2012 at 12:37 pm

    I agree – DOMA doesn't in any way keep states from declaring that couples are married. What it does is limit the ways in which a state can treat its citizens (mostly where federal funds and programs are involved), and directly discriminate against the individuals in same-sex marriages.

    On the other hand, a lot of times in law, things like direct harm are not the only things that can validly be looked at. Even though this doesn't prevent a state from declaring someone married, its hard to say that it doesn't have the affect of making that marriage second-class. Effectively, under DOMA, a state cannot grant a same sex couple "the same" marriage as a straight couple, since things like portability and federal rights are impacted. That could be a serious infringement of the state's right to treat it's citizens equally. It's worth trying to make that case.

  • 7. Kathleen  |  April 4, 2012 at 1:22 pm

    "That could be a serious infringement of the state's right to treat it's citizens equally. It's worth trying to make that case. "

    That is, in fact, part of what Massachusetts argued. It said it was forcing the state to violate the Equal Protection clause of the 14th Amendment by treating its citizens differently in allocating some benefits. (read initial complaint – linked above).

  • 8. Daniel in Missouri  |  April 4, 2012 at 6:27 pm

    Just a thought (I am not a legal scholar either), why can't a state which allows ssm not claim infringement due to the fact it is not allowed to count same-sex couples in federal funding formulas?

  • 9. Kathleen  |  April 4, 2012 at 1:24 pm

    Just to be clear, it is only Section 3 of DOMA that is at issue here. None of the individual plaintiffs nor the state of Mass is challenging Section 2.

  • 10. RWG  |  April 4, 2012 at 10:58 am

    Deciding this case on a 10th amendment basis would open up a constellation of Federal programs for review as violations of states' rights and hand a big stick to the Right Wing to wreak programs they don't like. Number 1 on that list would be Medicaid, followed by voting rights, education programs, use of highway funds, hate crimes laws and on and on. The government has an interest, in order to preserve valued, vital programs, as well as Federal prerogatives, to keep 10th amendment rulings to a minimum. DOMA can be invalidated under Due Process and Equal Protection claims.

  • 11. Mackenzie  |  April 4, 2012 at 11:10 am

    I agree, but allowing a state to ignore another states laws is differnt than the federal government allocating federal funds to states. I think as you stated it is wise to not argue the 10th amendment, just throwing my two cents out there.

  • 12. Kathleen  |  April 4, 2012 at 11:37 am

    To understand the state's position (as opposed to the individual plaintiffs' equal protection argument) and the harms it alleges DOMA creates, read the Commonwealth's initial complaint:

    The state of Massachusetts alleged two basic constitutional violations: Violation of 10th Amendment guarantees/principles of federalism and an impermissible overreach of Congress's authority under the Spending Clause.

    The DOJ is saying that there can't be a 10th Amendment violation when Congress is exercising is enumerated powers and Congress was exercising one of those powers when it defines conditions for receipt of federal programs under the Spending Clause.

  • 13. Steve  |  April 4, 2012 at 10:40 am

    Fact is that states are also involved in certain federal programs and receive federal money in many cases. They risk losing that money if they ignore DOMA. And there are things on a state level that apply federal regulations to some extent. So states are impacted by DOMA too

  • 14. Mackenzie  |  April 4, 2012 at 11:00 am

    What specifically are these financial risks? I am not calling you out, just intersted in knowing. At first I kinda thought of this as federal transportation funds for states and the requirement that each state make the legal drinking age 21. But I don't really see how DOMA directly hurts states, just the people who reside in them.

  • 15. Jamie  |  April 4, 2012 at 11:10 am

    Massachusetts actually has decided to kick in money to cover benefits for gay married couples that aren't covered under DOMA. I think it mostly relates to medicare benefits. Basically, Massachusetts requires that all married couples are treated by the state equally. The federal government provides medicare monies for married straight couples, but not married gay couples to the state. The state covers the difference and treats all married couples equally.

  • 16. Lymis  |  April 4, 2012 at 12:40 pm

    One of the specifics that was raised in the case is that Massachusetts would lose funding for VA cemeteries if they treated legally married gay spouses as veteran's spouses and gave burial rights. Violating the eligibility rules ends funding.

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

    There are a number of examples cited in Massachusetts's initial complaint (link posted above).

  • 18. AnonyGrl  |  April 4, 2012 at 10:45 am

    So the DOJ is not only not defending DOMA, they are arguing against it? Am I reading this right?

  • 19. Mackenzie  |  April 4, 2012 at 11:02 am

    Yeah, I beleive that is the case. They asked for the DOMA case being sent to the appeals court in the 9th circuit to g odirectly to enbanc to help speed up the process for the plaitifs.

  • 20. Scottie Thomaston  |  April 4, 2012 at 11:17 am

    They are very strongly against it. They've written some amazing briefs completely tearing it down.

  • 21. Kathleen  |  April 4, 2012 at 11:20 am

    The DOJ has been filing briefs for sometimes now, in several cases, that are in support of plaintiffs' equal protection claims, i.e., arguing against DOMA.

  • 22. Eric  |  April 4, 2012 at 1:04 pm

    Keep in mind, that this is the same DoJ that thinks it is perfectly ok to kill a US citizen while oversees, without any judicial review.

  • 23. Eric  |  April 4, 2012 at 1:05 pm

    Overseas, damn iPad autocorrect.

  • 24. Stone  |  April 4, 2012 at 10:56 am

    Breathlessly awaiting the other posts, as well as the missing audio. If it isn't recoverable, at least there are transcripts. Thanks for all of your hard work!

  • 25. Kathleen  |  April 4, 2012 at 11:19 am

    I've checked with the clerk's office. This audio is the only record – there are no independent transcripts – and we're missing the first 18 minutes.

  • 26. Sheryl_Carver  |  April 4, 2012 at 11:25 am

    This is unbelievable in this day & age, & for a court deciding cases of this importance!

    Does the fact that there is now no way to prove who said what have any impact on whatever ruling the panel of judges renders?

  • 27. B Z  |  April 4, 2012 at 12:15 pm

    Wasn't 18 minutes the amount of time missing from the Nixon tapes?

  • 28. Bob  |  April 4, 2012 at 11:22 am

    Will there be audio? It was not clear to me whether the prohibition on electronic devices that was mentioned in yesterday's preview simply meant that there would be no live blogging or if it meant that there would be no recordings of any kind.

  • 29. Kathleen  |  April 4, 2012 at 11:43 am

    There is an audio of the arguments available here:

    The first 18 minutes are missing (all of Clement's initial argument and the first part from the DOJ) – the Court's website says there was a technical problem.

  • 30. Prop 8 Trial Tracker &raq&hellip  |  April 4, 2012 at 11:16 am

    […] our analysis of oral arguments from Part 1 in the First Circuit DOMA case, the next lawyer up to the podium was Mary Bonauto from GLAD. Though […]

  • 31. Walter  |  April 4, 2012 at 11:48 am

    The issue comes up again about where the DOJ stands on rational basis. Holder in his letter to Boehner notifying him that the DOJ would cease defending DOMA said the Department would defend DOMA if a circuit determined rational basis review applied. Yet here, Delery appears to say DOJ would not defend DOMA on any basis. I'm beginning to think DOJ is "evolving" on this issue and appears ready to say that DOMA is indefensible even on a rational basis review. A judge does seem to push Delery on this point and Delery does seem to dance around the issue a bit.

  • 32. Kathleen  |  April 4, 2012 at 11:59 am

    I agree that he danced around this question. He re-emphasized that the DOJ's position is that it's unconstitutional because it should be subjected to heightened scrutiny, that subjecting it to rational basis review would 'ignore the facts' and that DOMA fails that standard.

    But when pressed again as to what the DOJ's position would be if the Court reviewed DOMA under rational basis, Delery said they had no position.

  • 33. Steve  |  April 4, 2012 at 12:24 pm

    That's one is a bit weird. Why wouldn't they have a position? They can still argue for heightened scrutiny even if they make a hypothetical rational basis argument

  • 34. Walter  |  April 4, 2012 at 12:34 pm

    I think they want to leave their options open at this point.

  • 35. Dante  |  April 4, 2012 at 12:39 pm

    The reason is that thousands of laws are challenged every year under rational basis review — mostly laws that we like or at least are constitutional — and so DOJ has an institutional interest in keeping it relatively easy to defend laws on a rational basis review. I think this is the right approach. We want to defer to the government when it passes a law about environmental regulation or food safety, but we don't want to defer when a suspect class/equal protection matter is involved. DOJ is walking a fine line (this being only one of thousands of cases it handles each year) and I'm sure some within DOJ would have advocated for saying that DOMA would survive rational basis review. It seems to me that taking no position and urging the court to apply heightened scrutiny was the best possible outcome. And as someone else noted, read the briefs and you'll have no doubt where DOJ stands on this law.

  • 36. Kathleen  |  April 4, 2012 at 1:26 pm

    "DOJ has an institutional interest in keeping it relatively easy to defend laws on a rational basis review."

    Good point.

  • 37. Prop 8 Trial Tracker &raq&hellip  |  April 4, 2012 at 12:58 pm

    […] For part 1 click here […]

  • 38. Federal Appeals Court Hea&hellip  |  April 5, 2012 at 9:08 am

    […] Thomaston of Prop8TrialTracker  provided live blogging (here are transcriptions in part 2  and part 3  and a round up here) of the arguments and there […]

  • 39. Prop 8 Trial Tracker &raq&hellip  |  April 5, 2012 at 11:45 am

    […] of the most interesting parts of yesterday’s hearing at the First Circuit Court of Appeals taking up a challenge to the odious Defense of Marriage Act is the marked shift in the Justice […]

  • 40. Prop 8 Trial Tracker &raq&hellip  |  April 25, 2012 at 11:19 am

    […] at the First Circuit Court of Appeals, and in Pederson v. OPM. We covered the arguments in Gill extensively here, but you can find a summary at The Huffington […]

  • 41. Prop 8 Trial Tracker &raq&hellip  |  May 18, 2012 at 10:02 am

    […] most of the DOMA cases, and the argument was made in Perry v. Brown. Most recently it appeared at oral argument in the First Circuit case on DOMA, Gill v. OPM/Massachusetts v. HHS: Clement also argued in court, […]

  • 42. Prop 8 Trial Tracker &raq&hellip  |  May 31, 2012 at 7:50 am

    […] v. OPM was recently heard at the First Circuit Court of Appeals, and today the decision came down that the three-judge panel […]

  • 43. Prop 8 Trial Tracker &raq&hellip  |  July 4, 2012 at 4:19 pm

    […] did reach the court of appeals and judgment was entered at that level. The challenge was heard at the First Circuit Court of Appeals, and the three-judge panel struck down Section 3 of the Act as unconstitutional. […]

  • 44. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:20 am

    […] Massachusetts said it violated the Tenth Amendment and the Spending Clause. Judge Tauro agreed.) At the First Circuit, on appeal, GLAD, the Justice Department and the Massachusetts AG’s office opposed the law; […]

  • 45. Hawkeye costume  |  November 21, 2012 at 3:24 am

    Such an informative session for me. Hope you will provide more informative post on this blog.

  • 46. Silkroad  |  November 23, 2012 at 12:52 am

    It is so interesting. I want to know some other information about this site. So please give me this news quickly. I always will be aware of you.

  • 47. Hamiltion  |  November 29, 2012 at 5:28 pm

    Wonderful!! this is really one of the most beneficial blogs I’ve ever browsed on this subject.I am very glad to read such a great blog and thank you for sharing this good info with us.

  • 48. bullets for sale  |  April 21, 2014 at 2:47 am

    Hi my loved one! I wish to say that this article is awesome,nice written and include almost all vital
    infos. I’d like to see extra posts like this .

    Take a look aat my webllog :: bullets for sale

Having technical problems? Visit our support page to report an issue!