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Filed under: Gill/Massachusetts

DOMA trial: What to expect from tomorrow’s hearing in the First Circuit Court of Appeals

By Jacob Combs

Tomorrow morning, starting at 10:00 a.m. EDT, the First Circuit Court of Appeals in Boston will hear oral arguments in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services.  It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth Amendments of the U.S. Constitution.  Judge Tauro, a Nixon appointee, was the first district court judge in the country to strike down DOMA.  A little over a month ago, another Republican-appointed judge, Jeffrey White of the Northern District of California, also declared DOMA unconstitutional.

It’s been a while since the original district court trial that Judge Tauro presided over, so we here at wanted to provide a brief review of the issues presented in the two cases and the legal analysis behind the judge’s decision.  In Gill, filed by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs argued that DOMA violates the equal protection provisions of the Fifth Amendment by discriminating against gay and lesbian couples who are married under the laws of the state they live in but denied federal marriage benefits by the government.  In the companion case of Massachusetts, Massachusetts Attorney General Martha Coakley claimed that Congress overstepped its authority and ran afoul of the Tenth Amendment in passing DOMA because the law undermined states’ abilities to recognize marriage equality.

Judge Tauro awarded summary judgment to the plaintiffs in both cases, striking down DOMA under the Fifth and Tenth Amendments.  In his decision in Gill, Tauro rejected the arguments that DOMA encouraged responsible procreation or realized a governmental desire to ensure children were raised by their two biological parents and concluded instead that Congress passed DOMA because of moral disapproval of same-sex relationships and prejudice against gay people.  In Massachusetts, Tauro affirmed that marriage has always been a province of state law in the United States, and ruled that DOMA constituted an unprecedented intrusion upon states’ rights by imposing a national definition of marriage.  In his decisions, Judge Tauro declined to decide whether or not DOMA should be considered under heightened scrutiny, ruling that the statute failed even the more deferential rational basis scrutiny.

Because it is so significant, the issue of which level of scrutiny should apply to cases like the DOMA and Prop 8 trials deserves some explanation here.  Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny.  As Judge White wrote in his February ruling explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion.”  In cases like these, the government must show that a classification is “substantially related to an important government objective.”  If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest.”

As we wrote about here at, in February of 2011, the Department of Justice announced its determination that sexual orientation was a classification meriting heightened scrutiny review.  In addition, it announced that is would cease to defend DOMA in court, and the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) took up the defense in its stead.  Briefings were submitted in the fall.  As it did recently in another DOMA case in the Ninth Circuit, the Department of Justice (along with the plaintiffs) filed a request for en banc review in the First Circuit as opposed to the slower route of proceeding to a 3-judge panel before en banc consideration.  The reasoning behind this decision has to do with the scrutiny question.  Because the 3-judge panels that first hear cases when they appealed are bound by a court’s earlier decisions, the panel appointed to hear Gill and Massachusetts would have to consider the First Circuit’s 2008 decision in Cook v. Gates, which determined that no Supreme Court ruling held that sexual orientation is a classification meriting heightened scrutiny.  An en banc panel would not be bound by that determination, and could consider the question anew.  Nevertheless, the petition for initial en banc hearing was denied.

In tomorrow’s hearing, you can expect to hear about the issue of scrutiny, and specifically Cook v. Gates, since the appeals panel will no doubt want to address the whether rational basis or heightened scrutiny applies. As mentioned above, Cook is a controlling precedent on this 3-judge panel, making it extremely unlikely the panel would opt for heightened scrutiny in considering Judge Tauro’s rulings.  Because the Cook case concerned Don’t Ask, Don’t Tell, a law that affected the military, it is somewhat different from these DOMA cases, which affect civilians (and, it might be added, service members as well).  Nonetheless, it seems almost certain that the First Circuit panel will follow Judge Tauro (and Cook) and use rational basis scrutiny in its determination of DOMA’s constitutionality.

The most unique portion of Judge Tauro’s 2010 ruling was his use of the Tenth Amendment, a darling of conservatives seeking to limit the scope of federal power. Tauro’s ruling in Massachusetts persuasively makes the case for striking down DOMA on Tenth Amendment grounds alone, even though the Fifth Amendment equal protection arguments of Gill are perhaps more traditional in cases like these. It will be intriguing to watch what questions the panel asks in terms of Judge Tauro’s two parallel tracks of analysis, and whether it finds one more convincing than the other.

Tomorrow’s meeting is also significant because of the lawyers who will be arguing for the various different parties. As we wrote before here at P8TT, the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision and one of the highest-ranking officials in the department. BLAG, on the other hand, will be represented by conservative legal wunderkind Paul Clement, former U.S. Solicitor General, who enjoyed the national spotlight this week because of his well-reviewed performance arguing against the constitutionality of the Affordable Care Act before the U.S. Supreme Court.  In addition, Mary Bonauto, a prominent civil rights attorney whom the New York Times Magazine compared to former Supreme Court Justice Thurgood Marshall, will be arguing for GLAD. Bonauto is well-known for her successful arguments in Goodridge v. Department of Public Health, the 2003 Massachusetts Supreme Court decision that brought marriage equality to the Bay State.  Maura Healy, the head of the Massachusetts Attorney General’s civil rights division, will represent the state of Massachusetts.

In terms of the panel itself, there appears to be little to be read from the proverbial tea leaves.  The three judges making up the panel are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit.  In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy.  In an email to P8TT, Shannon Minter, Legal Director at the National Center for Lesbian Rights, wrote that none of the three judges can be easily classified as liberal or conservative.

Unfortunately, due to the ban on electronic devices of any kind in the courtroom tomorrow, P8TT will not be able to live blog the First Circuit hearing. If you live in Boston, you can try to attend the hearing in person when the courtroom opens at 8:00 a.m. Feel free to send reactions and dispatches to prop8trial AT couragecampaign DOT org.  Immediately after the hearing, audio of the oral arguments will be posted on the court’s website.

As always, will provide full coverage of tomorrow’s hearing.  Check back throughout the day for updated news and analysis.

14 Comments April 3, 2012

DOMA trials: updates from the First and Ninth Circuits

By Jacob Combs

A sincere thank you to Kathleen for bringing news of all of these developments to us via Quick Hits.

Yesterday, the Justice Department filed two briefs with the Ninth Circuit regarding the appeal of Golinski v. OPM.  In its first filing, the government petitioned the Ninth Circuit for an “initial hearing en banc,” and requested that the en banc petition as well as the overall appeal be expedited.  As you may remember from the Prop 8 trial, an appeal in the Ninth Circuit goes first to a 3-judge panel, and can then proceed to a larger 11-judge en banc panel.  In its filing, the Justice Department called DOMA “a constitutional question of exceptional importance and urgency,” and specifically cited the need for a determination on whether classifications based on sexual orientation should be examined under heightened scrutiny or rational basis scrutiny.

I wrote recently about how the district court’s decision in Golinski v. OPM, looking specifically at the significance of Judge Jeffrey White’s determination to strike down DOMA on heightened scrutiny grounds.  The Ninth Circuit’s 1990 decision in a case called High Tech Gays ruled that gays and lesbians were not a suspect class (and therefore not deserving of heightened scrutiny).  As Judge White noted in his ruling, however, High Tech Gays was based on the Supreme Court’s decision in Bowers v. Hardwick, which was specifically overturned by the 2003 ruling in Lawrence v. Texas.  High Tech Gays, then, is based on outdated law, and Judge White noted that the Ninth Circuit can and should make a new determintion on the scrunity question.  In its brief, the government argues that a Ninth Circuit panel would have to determine whether High Tech Gays still binds panels in the appellate court, while an en banc court could look at the question of heightened scrutiny anew.

The Justice Department’s position is a big deal, because it recognizes just how important the scrutiny issue is to the determination of DOMA’s constitutionality, and essentially argues for skipping the panel step and going straight to the en banc review that would almost certainly be required for such an important precedential consideration.  In addition, the government also filed a separate motion to consolidate and expedite both BLAG and the Justice Department’s appeals, writing that “ongoing litigation creates uncertainty for Ms. Golinski and countless others who are harmed by DOMA, given its extraordinary scope.”

Also yesterday, the First Circuit announced the names of the three judges who will make up the appeals panel for in the companion cases of Gill v. OPM and Massachusetts v. HHS.  The three judges are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit.  In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy.  P8TT will continue to look into the judges’ background for any information as to how they might rule in the Massachusetts cases.  The First Circuit will hear arguments in the two DOMA cases in Boston on April 4 beginning at 10 a.m.  BLAG and the Justice Department will each receive 20 minutes to speak, while attorneys for Gill and Massachusetts will each receive 10.

One interesting aspect of the First Circuit hearings is the attorneys who will be making the government’s arguments on both sides.  In some ways, the face-off will be a meeting of the greats: Paul Clement, a former U.S. Solicitor General who left his previous law firm after it withdrew from defending DOMA, will be representing BLAG in Boston, while the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision.  Delery was recently assigned to the case to replace another government attorney, and his appointment is significant because he is both a high-ranking member of the Justice Department and because he is openly gay.

With these developments in the First and Ninth Circuits, we have a lot to look forward to as DOMA continues to be examined and, hopefully, struck down by more appellate courts on its way to its eventual consideration by the U.S. Supreme Court.

21 Comments March 27, 2012

DOMA trials: Appeal hearing date scheduled in Gill v. OPM case

By Adam Bink

Courtesy of our friends at GLAD, a hearing date for the appeal of the Gill v. OPM case concerning DOMA has been scheduled for April 4, 9:30 AM in Boston. Mary Bonauto wil be arguing for our side.

Here’s the court notice if you like reading these sorts of things.

We’ll be working to bring you coverage of the hearing.

14 Comments February 28, 2012

More briefs filed in Gill v. OPM and Massachusetts v. HHS

By Jacob Combs

Thanks again to Kathleen for bringing us this.  Yesterday, reply briefs were filed in the appeal of Judge Tauro’s decision striking down the Defense of Marriage Act as unconstitutional in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services.

The first brief comes from the government, on behalf of the official defendants.  The second is from the Bipartisan Legal Advisory Group, which is defending the law.

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6 Comments December 3, 2011

SLDN files for summary judgment in Massachusetts DOMA case

By Jacob Combs

Hi P8TTers–I hope your Thanksgivings were restful and filled with family.  Earlier this week, there was an update in a lawsuit filed by the Servicemembers Legal Defense Network (SLDN) in October called McLaughlin v. Panetta, and I thought I’d write a little about the development and why it’s so important.

SLDN, you’ll remember, was one of the organizations that pushed hardest for repeal of Don’t Ask, Don’t Tell.  Now that DADT is dead and gays and lesbians can serve openly in the U.S. Armed Forces, SLDN filed a follow-up lawsuit in a federal court in Boston on behalf of eight plaintiffs who are legally married, but prohibited by DOMA from obtaining many of the benefits that heterosexual military couples enjoy, including on-base housing, health care, survivor benefits, and burial rights at national cemeteries.

On Monday, SLDN filed a brief for summary judgment in the case, arguing that DOMA’s prohibition on spousal rights for same-sex military couples violates both the Due Process clause of the Fifth Amendment and the limitations of congressional authority laid out in the Tenth Amendment.  In filing for summary judgment (which is when a court decides a case without hearing a full trial), SLDN argues that the U.S. government has made no objection to the facts laid out in the case, and thus it can be decided without further hearings.  None of the government defendants–Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki–have filed any defense in the case.  BLAG, the Bipartisan Legal Advisory Group (which voted on party lines to defend DOMA in court after the Obama Administration declared the law unconstitutional and declined to continue defending it in February), filed a brief earlier this November informing the court that it would seek to intervene in the case if the official defendants do not defend DOMA.

In a delicious turn of events, many of the arguments SLDN uses in its brief are borrowed in part from politicians who supported DADT and argued to continue the discriminatory policy when it was repealed late last year.  As SLDN’s brief puts it:

Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion. While there was once a debate as to whether gay and lesbian service members should be allowed to serve openly in the armed forces — just as there were similar debates regarding integrating the military by race and then by gender — there never has been any debate as to whether similarly situated service members who do the same work deserve the same benefits.

Although it has taken us almost a year to get here, this lawsuit shows just how important repealing DADT was.  In fact, many in our community (myself included) saw DADT repeal as the first domino to fall in achieving full federal equality.  It is clearly unconstitutional and discriminatory for our nation’s military, an institution based on the values of fairness and equality, to treat lawfully married same-sex couples differently from their opposite-sex counterparts.

To put it simply, DOMA is hanging by a thread: it cannot and has not withstood constitutional scrutiny in a court of law.  SLDN’s lawsuit may not be the one that ends up striking down DOMA for good–last year’s companion cases Gill v. OPM and Massachusetts v. HHS, in which Judge Joseph Tauro, a Nixon appointee, struck down the law as unconstitutional, are already in the U.S. Court of Appeals for the First Circuit, and will likely make it to the Supreme Court before SLDN’s suit.  (Incidentally, the SLDN lawsuit was originally assigned to Judge Tauro, but later reassigned to a different judge.)

As I sat on the porch yesterday waiting while the turkey cooked and writing this post, I was struck by an opinion piece brought to us by Sagesse in Quick Hits.  Written by Jim Toevs, the piece points out that the repeal of DADT is something for every member of the LGBT community to be thankful for this year.  I couldn’t agree more.  SLDN’s lawsuit shows just how important it is to strive for equality in all aspects–whether it be in terms of marriage, military service or even employment.  Our victories are not isolated, but rather build upon each other, and each step we take moves us closer to a country where we can be thankful that we enjoy the rights all citizens deserve.


20 Comments November 25, 2011

A closer look at last week’s amicus brief in Gill v. OPM regarding heightened scrutiny

By Jacob Combs

On the heels of my post from Sunday about the importance of amicus briefs, I wanted to take a moment to look at a recent amicus brief filed last week in support of Judge Tauro’s decision in Gill v. OPM by 31 bar associations and legal service organizations, including the ACLU, HRC, Freedom to Marry, and Lambda Legal.

The brief focuses specifically on the issue of heightened scrutiny, a topic that is sure to grace our pages in the coming weeks as the Prop 8 trial unfolds at the California Supreme Court and at the 9th Circuit.  We’ve already had some excellent posts (here and here) examining the intricacies of rational basis vs. heightened scrutiny.  What’s interesting in this brief, however, is the logic these organizations’ lawyers use to make the claim for heightened scrutiny as the correct path for the First Circuit to take in deciding the case.

The brief’s argument essentially comes down to a grand battle of two Supreme Court decisions: Bowers v. Hardwick, decided in 1986, and Lawrence v. Texas, from 2003.  In the 17 intervening years between those two cases, courts considering whether sexual orientation should be subject to heightened scrutiny relied on the decision in Bowers, which stated that the Due Process Clause did not provide “a fundamental right for homosexuals to engage in sodomy.”  Justice Kennedy, however, writing for the majority in Lawrence, nullified the Court’s earlier decision, declaring that “Bowers was not correct when it was decided, and it is not correct today.”

The amicus brief examines the profound impact that Bowers has had on the determination of the correct level of scrutiny to apply to sexual orientation.  In the 1980s, some judges and observers began to point out that heightened scrutiny should apply to sexual orientation, but most circuit courts interpreted Bowers to unequivocally withhold the opportunity for gays and lesbians to be considered a suspect or quasi-suspect class (the types of classes for which heightened scrutiny is applicable).  In addition, district courts that did come to these conclusions had their decisions overturned on appeal, again under the auspices of Bowers.

Perhaps even more significantly, the brief points out that in the 8 years since Lawrence was decided, no appellate court has applied a proper heightened scrutiny analysis to sexual orientation.  What has happened instead is a sort of cascading effect caused by out-of-date jurisprudence: post-Lawrence decisions have too often continued to rely on cases that cited the logic of Bowers.  Of course, since Bowers was incorrect (as Justice Kennedy pointed out in 2003), then cases that use Bowers as the foundation for later decisions must also be looked at critically, since they do not properly take into account the fundamental shift that occurred in Lawrence, when a right to homosexual behavior (and thus, implicitly, a right to homosexual existence) was first recognized by the Supreme Court.

There’s a lot more in the brief worth reading, which is attached below. It points out that the two most important factors that call for heightened scrutiny, a history of discrimination and a classification that has no basis in an individual’s ability to contribute to society, apply to sexual orientation.  It also makes the obvious point that sexual orientation is immutable.

Most importantly, though, it argues that gays and lesbians are uniquely disadvantaged in the political sphere.  This is a point worth stressing, because I believe it is one that will be used against us as we move towards greater equality.  As we continue to score victories in the legislative and judicial arenas, our opponents will argue that we are politically powerful, and therefore should not be subject to heightened scrutiny by the courts.

As this amicus brief demonstrates, however, the Supreme Court has never interpreted the concept of political powerlessness to hold that a group is unable to achieve any protections in the political process.  To the contrary, gays and lesbians are still vulnerable to developments in our system of majoritarian politics, and our difficulty to secure protections demonstrates “a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary,” to quote the Supreme Court in Cleburne, Tex. v. Cleburne Living Ctr.

The heightened scrutiny battle is still ahead of us.  With hope, appellate courts will begin relying on Lawrence and rejecting Bowers-inspired cases, as Judge Vaughn Walker did when he struck down Prop 8 in Perry v. Schwarzenegger.

Bar Association/Public Interest Organization Amicus Brief (Gill v. OPM)

51 Comments November 15, 2011

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