While the high-profile, Ted Olson- and David Boies-managed legal fight against California’s Proposition 8 captures headlines, a carefully planned case quietly underway in Massachusetts federal court could be the gay marriage test with the greatest national impact.

The challenge, Gill v. Office of Personnel Management, is one of four lawsuits in different parts of the country that ask federal courts to strike down all or parts of the 1996 federal Defense of Marriage Act (DOMA). The suits, and the Gill case in particular, according to advocates and scholars closely watching their progress, are just the opening shots in a struggle destined for the U.S. Supreme Court.

“If you’re looking to effect legal change, you’re looking for plaintiffs who have been harmed, a lawsuit

reasonably well-funded, and the legal expertise to take it up [to] the appellate process,” said Arthur Leonard of New York Law School, an expert on gay and lesbian legal issues. The Gill case meets that description, he and others believe.

For the Obama administration, Gill and the three other suits present potentially treacherous legal and political waters. It has decided to defend the law in court even as it has stated publicly its plans to seek repeal in Congress. And its arguments in defense of the law, recently revealed in a California suit, have pleased neither opponents nor supporters.

The lawsuits ultimately confront the courts in general, and the Supreme Court in particular, with what they may regard as a question of “institutional competence,” said Michael Dorf of Cornell Law School. A proponent of marriage equality, he nonetheless worries that the courts might defer to Congress on an issue with so many political and social ramifications.

“If and when the challenge to DOMA reaches the Supreme Court,” he said, “the Justices are likely to view the case as presenting more than technical legal issues.  They’ll think about whether it’s right to do what’s being asked [in these suits], whether it’s right to do this now, and behind all of that will be the individual justices’ views about same-sex marriage.”



The 1996 law has two substantive parts: Section 2 permits states to ignore the same-sex laws or policies of other states; Section 3 defines marriage as the legal union of a man and a woman for purposes of all federal laws and programs related to marriage.

Of the four lawsuits — Gill and a suit filed in July by Massachusetts Attorney General Martha Coakley, and one each in California and Oklahoma — the Massachusetts cases are the most promising for the law’s opponents, say some constitutional scholars. Unlike the other cases, they said, the Massachusetts suits are well-focused, well-financed, and highly lawyered.

GLAD — Gay & Lesbian Advocates & Defenders — is the driving force behind the Gill case. The legal organization, which won the landmark 2003 Massachusetts Supreme Judicial Court decision permitting same-sex marriage, has drawn support and expertise in its case from four major law firms: Foley Hoag of Boston; Sullivan & Worcester of Boston; Kator, Parks & Weiser of Washington; and Jenner & Block of Chicago (including partner Paul Smith, who successfully argued the last major gay rights victory in the Supreme Court: Lawrence v. Texas in 2003).

GLAD Legal Director Gary Buseck said the Gill case is a “pretty simple, mainstream equal protection case.” Its target is Section 3, which restricts federal benefits to those in traditional marriages only.

“Our basic conception is Massachusetts has one class of married people,” he said. “It issues the same license and registers all couples in the same registry. That one, undivided class is then broken into two pieces by the federal government, which says one part of that group is entitled to every benefit and responsibility under federal law and one part is treated as never married.”

GLAD argues there is no justification for that unequal treatment. “Under our system of dual sovereignty, it has been recognized across the spectrum that the law of marriage and domestic relations belongs to the states and the federal government has always accepted what the states have said about it,” Buseck said.

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.”


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 Aug. 25, 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 re-file 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.”

Marcia Coyle can be contacted at marcia.coyle@incisivemedia.com.