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First Circuit Hears Oral Argument in Gill and Massachusetts

The First Circuit Court of Appeals hears arguments in the companion cases of Gill v. OPM and Massachusetts v. HHS, in which DOMA was struck down as unconstitutional by a district court judge.  The three judge appellate panel is comprised of Chief Judge Sandra Lynch, a Clinton appointee, Judge Juan Torruella, a Reagan appointee, and Judge Michael Boudin, a George H. W. Bush appointee.  (None of the three judges has a history of decisions that can be clearly classified as liberal or conservative.)

Significantly, the Department of Justice is represented in the courtroom by Stuart Delery, Acting Assistant Attorney General of the DOJ’s Civil Division.  Delery outlines the department’s position under Attorney General Eric Holder’s 2011 directive that DOMA cannot be defended as constitutional under any basis, including the most deferential rational basis review.  In his argument, Delery dismisses the proposed governmental purposes in favor of DOMA, stressing that it was explicitly passed in order to uphold “traditional notions of morality,” and that the Supreme Court has ruled in several cases that a “bare desire to harm a politically unpopular group” is not a rational government interest.

Delery also disputes the argument that DOMA creates a more positive environment for responsible child-rearing, since it has no effect on heterosexual couples, and in fact destabilizes the families of gay and lesbian couples and harms their children.  The Justice Department, however, argues against the Tenth Amendment and Spending Clause arguments made by Massachusetts in the lower court, saying that the law should be struck down on equal protection grounds.

Mary Bonauto, representing GLAD in court, also argues that DOMA does not protect the “public fisc,” since any monetary savings it allows for are based only on the discriminatory treatment of gay and lesbian couples.  In addition, she argues, DOMA should not be upheld on the grounds that it maintains any sort of status quo or represents a desire to ‘proceed with caution,’ making the case that DOMA in essence puts a ‘no gays need apply’ sign over the entire U.S. Code.

Representing the Commonwealth of Massachusetts, Maura Healey argues that DOMA violates the Tenth Amendment by making gay and lesbian couples in Massachusetts “‘sort-of’ married,” and only burdens states with marriage equality by forcing them to recognize two classes of married couples in violation of their public policy towards equal marriage rights.  Healy makes direct reference to the history of marital law in the United States, arguing that Congress has to accept state definitions of marriage under the Tenth Amendment.

Paul Clement, representing BLAG, argues that some aspects of the Defense of Marriage Act are positive for gays and lesbians couples (for example, they can apply for certain benefits using their incomes as single individuals as opposed to as a couple), and that DOMA does not represent an expression of government animus.

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