Font Size:

Mass. Case May Be Key in Taking Gay Marriage Fight to Supreme Court

August 31, 2009

Buseck and Jenner's Smith said the Gill case was brought after much discussion with those in the gay rights movement for a number of years. "Ultimately, the judgment was made that if you limit the challenge to the question of federal recognition (Section 3) that was a very strong claim and it had a very good shot at winning in the Supreme Court," Smith said.

The timing is right, added Buseck, because same-sex marriage is now secure in Massachusetts and Section 3 has been creating the most harm to same-sex married couples.

And the legal landscape is "drastically different" from 1996 when the act had no practical application to anyone, said New York Law's Leonard. "The difference today is like night and day," he said. "There are a handful of countries where same-sex couples can marry and a handful of states. It is definitely an idea whose time has come in various parts of the country, but not in others."

To avoid technical problems, such as standing, that have plagued the suits in California and Oklahoma, the Gill lawyers sought plaintiffs who not only had been harmed by Section 3, but also had completed their trips through the lengthy federal administrative processing of their initial claims. They are married couples or surviving spouses whose amended tax returns have been rejected, whose government health insurance applications were rebuffed, and whose Social Security death benefit claims were denied.

"We've tried to do our homework," Buseck said. "This is the kind of case -- and there's no guarantee -- that could end up at the Supreme Court, and we wanted to be sure if it did get there, we had crafted a lawsuit that had the best chance of winning."

Attorney General Coakley's suit -- Commonwealth v. U.S. Dept. of Health & Human Services -- complements the GLAD equal protection suit, according to scholars, by giving the courts an additional ground to strike down Section 3. She contends that DOMA interferes with the commonwealth's sovereign authority to define and regulate the marital status of its residents. And, she argues, the law exceeds Congress' authority under the spending clause because Congress does not have a valid reason for requiring Massachusetts to treat married same-sex couples differently from all other married couples.

Although he called the Massachusetts challenges "well-planned and coordinated," Brian Raum, senior counsel to the Alliance Defense Fund, which supports the 1996 law, said, "I think all four suits are serious challenges. We are confident they ultimately will not prevail. The federal law is clearly constitutional."

TROUBLED LAWSUITS

The California suit -- Smelt v. U.S. -- and the Oklahoma suit -- Bishop v. U.S. -- are broader-based challenges to DOMA than Gill. They also have troubled court histories as they have encountered jurisdiction and standing problems.

On Tuesday, a federal judge dismissed the Smelt suit, saying it had been filed improperly in state court before being transferred to his jurisdiction. Richard Gilbert of Santa Ana, Calif., counsel for Arthur Smelt and Christopher Hammer, has said he will refile the challenge. Two Oklahoma gay couples filed an amended federal complaint on Aug. 10 putting their DOMA challenge back on track after problems with jurisdiction and representation.

The Obama administration first revealed its legal defense of the 1996 law in its motion to dismiss the Smelt case on June 11. Jenner's Smith said he was involved in the effort to persuade the Department of Justice not to defend the law, but said he was "not surprised" that it did.

The Department of Justice's arguments outraged the administration's gay supporters because they went beyond the suit's jurisdictional and standing problems and addressed the merits with what, gay legal advocates said, were erroneous and inflammatory claims.

That outrage was apparently heard. In a much-toned down reply brief filed on Aug. 17, the department told the court that the law was discriminatory and the administration was seeking its repeal. The department also said the law is not rationally related to any legitimate government interest in procreation and child rearing, but there were other legitimate government interests to support its constitutionality.

Outrage then shifted to the law's supporters who felt the procreation argument was a major leg in the law's defense. "The government has an interest in creating unions that lend themselves to responsible procreation such that kids are raised with their married biological mother and father," said Raum, whose Alliance Defense Fund is an amicus party in Smelt.

The government, he said, doesn't have to believe that "responsible procreation" has been proven necessary, only that it is rational for Congress to have believed it.

The government, Raum and conservative groups disagree with DOMA opponents on what level of scrutiny courts should give the law in judging its constitutionality. The government argues rational basis -- the lowest level and easiest test for the government. Opponents argue for heightened scrutiny -- a tougher, but not the toughest hurdle for the government to overcome.

GLAD's Buseck said the government arguments in Smelt "suggest" what it will say when it responds to Gill on Sept. 18. But the "big question mark" is the Supreme Court, not the lower courts, Leonard said. "It is a slightly different court from when Lawrence was decided in 2003," he said. "There are some people up there who haven't yet voted on a gay rights issue. I don't know many people would have predicted in 1987 that [Justice Anthony] Kennedy would emerge as author of the two most important gay rights decisions. It's hard to predict."

Subscribe to The National Law Journal

TOP JOBS