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The federal law defining marriage as a union between one man and one woman sparked strong rhetoric in hour-long oral arguments at the U.S. Court of Appeals for the 1st Circuit on Wednesday. Paul Clement of Bancroft, representing members of Congress who support the federal Defense of Marriage Act, argued that “government can rationally say [marriage] is too important of an institution to make a change to.” Mary Bonauto of Gay & Lesbian Advocates & Defenders, representing individual challengers to the law, argued that, “For the entire history of our country, the one constant of marriage law has been change.” Chief Judge Sandra Lynch sat on the panel for the oral arguments, along with judges Michael Boudin and Juan Torruella. The judges asked probing question of both sides and did not give a clear indication of how they would rule. In two separate cases, individual plaintiffs and the state of Massachusetts challenged the 1996 federal Defense of Marriage Act (DOMA), claiming that it harms residents of Massachusetts, where same-sex marriage is legal, and the state itself. Bonauto, the civil rights project director of Gay & Lesbian Advocates & Defenders (GLAD), represented same-sex couples and widowed individuals who were married in Massachusetts. They allege that DOMA violates the Fifth Amendment’s equal protection guarantee by denying same-sex married couples federal benefits that heterosexual married couples are entitled to. Arguing for the state was Maura Healey, chief of the state’s public protection and advocacy bureau. The state argues that Section 3 of DOMA, as applied to federal funding programs that Massachusetts takes part in, violates the U.S. Constitution in two ways. One is the spending clause, which restricts Congress’ power to impose conditions on states receiving federal funding. The other is the 10th Amendment by interfering in an area of state sovereignty. Because the Department of Justice announced last year that it will no longer defend DOMA, Clement argued in defense of DOMA on behalf of members of the House of Representatives who support the law. They maintain that Congress acted rationally in enacting DOMA, both fiscally and because it steers clear of administrative tangles that could arise from same-sex couples moving from state to state or seeking recognition of a foreign marriage certificate. Last week, Clement argued before the U.S. Supreme Court that the individual mandate of the Affordable Care Act is unconstitutional. Stuart Delery, acting assistant attorney general of the Department of Justice’s Civil Division, argued for the government, against the constitutionality of Section 3 of the act. At the oral arguments, Clement said that the 1st Circuit’s 2008 ruling in Cook v. Gates is binding. The ruling upheld the military’s former “Don’t ask, don’t tell” policy about homosexuals in the military and applied a rational basis review to sexual orientation classifications: “When it got to the equal protection claim, the court was quite specific in saying that rational basis applied.” Clement argued that Congress had numerous rational bases for enacting DOMA, including the 1996 Hawaii Supreme Court decision in Baehr v. Miike, which held that barring same-sex couples from marriage violated the state constitution’s equal protection guarantee. Congress, he said, “could perhaps foresee a period of foment” following that Hawaii case, and it was rational step to preserve the status quo for a period of time by adopting a traditional definition of marriage. “In a time of change to such a fundamental institution, government can rationally say this is too important of an institution to make a change to.” Torruella asked Clement whether DOMA’s Section 2, which affords states, territories, possessions and Indian tribes the option not to recognize other states’ same-sex marriages, and Section 3 “force the state governments to legislate” to clarify the state’s position. Clement replied that DOMA leaves them to their own processes in how they deal with the issue. Torruella also said to Clement, “if states don’t toe the line on what is marriage they’ll lose benefits. Aren’t you forcing states to change their local law?” Clement replied that “Massachusetts didn’t lose a single dollar. The consequence was to make a state’s decision a fiscally neutral decision.” Delery, arguing for the U.S. government, said that, although the 1st Circuit’s “precedent calls for rational basis review, in this context it’s clear this law targets a group that has faced long and deep discrimination under the Supreme Court’s established framework of classification [of such groups].” Lynch asked Delery whether the government’s “suspect classification argument depends upon both showings: animus and targeting of a particular group.” Delery responded that Supreme Court case law examines whether a group has been subject to a history of discrimination and other factors to determine whether laws targeting them should be treated as suspect. As a second piece of such an analysis, the high court also looks at what’s going on with a particular Statute “such that heightened scrutiny is warranted, because in fact the statute is directed against a particular group.” “Looking at the legislative record, starting with the name of the statute, the Defense of Marriage Act, it’s a defense against something and that something was same-sex couples,” Delery said. “Furthermore, there’s clear evidence in the legislative record of animus including prejudice and stereotyped-based thinking. The record, the House report, reflects an overt moral disapproval of homosexuality. It shows a repeated desire to a avoid a stamp of approval on a relationship that many people think is immoral and those same considerations infect the discussion of the other interests that Congress actually identified.” Bonauto of GLAD agreed with Delery that heightened scrutiny should apply. “DOMA’s precise point was to prevent… inclusion.…It included an across-board-exclusion…When it comes to the rights of persons, the Constitution demands neutrality.” Lynch asked Bonauto to address Clement’s argument that “the background conditions changed because of the Hawaii Supreme Court decision and that alone justified a break with Congress’s prior determination that it did not need a federal definition.” “For the entire history of our country, the one constant of marriage law has been change,” Bonauto said. Bonauto noted that Congress has been deferential to states even on such divisive laws as those involving interracial marriage: “We believe that DOMA is an irrational arbitrary classification of gay people for its own sake and not any other purpose.” Healey, arguing for the state, said that DOMA is revolutionary because it “takes away from Massachusetts a single unitary marital status that is valid for all purposes. This is not a burden visited on other states.” Lynch asked Healey to address Clement’s argument on “whether Massachusetts’ decision can drive the federal government’s decision about its benefits programs which it gives to employees and tax consequences.” Healey called the bipartisan legal group’s argument that this case is about federal benefits and definitions in federal statutes “a red herring.” She said, “At every turn, despite at times great controversy, the federal government has always accepted, has always recognized a state marriage as valid for all purposes under law.” “We’re just asking that this relationship, this cooperative federalism be restored to its proper place,” Healey said. The origins of the cases date back to 2003, when the Massachusetts Supreme Judicial Court ruled that the state’s previous law barring same-sex marriage violated the state constitution. As a result, same-sex couples began to get married in the state. In March 2009, GLAD sued the U.S. Government on behalf of seven same-sex couples and three survivors of same-sex spouses, married in Massachusetts. Nancy Gill was the named plaintiff in the case, Gill v. Office of Personnel Management. In August 2010, Tauro entered a final judgment and declared DOMA unconstitutional as applied to the plaintiffs. He enjoined its application to them, but stayed the order pending appeal. In July of that year, Massachusetts Attorney General Martha Coakley sued the U.S. Department of Health and Human Services (HHS). In August 2010, Tauro entered a final judgment for Massachusetts in the case, Commonwealth of Massachusetts v. HHS, which enjoined the application of DOMA to the state. The appeal took a major twist during the briefing stage. Assistant Attorney General Tony West informed the 1st Circuit in February 2011 that the Justice Department and HHS would stop defending Section 3 of DOMA, which codifies that same-sex marriages aren’t recognized for federal purposes, including benefits. That July, the 1st Circuit granted a motion to intervene to defend DOMA brought by a group of House members known as the “Bipartisan Legal Advisory Group of the U.S. House of Representatives.” The bipartisan legal group’s brief argued that “neither Congress’s preference for a uniform federal rule nor its choice of the traditional and majority rule over a substantial redefinition was irrational.” Dozens of organizations and individuals also banded together to file more than two dozen amicus briefs. Groups like the Family Research Council and the Thomas More Society and the American College of Pediatricians filed briefs supporting reversal of the lower court rulings. Groups of professors, psychology, medical and social work associations and labor organization teamed up to support the GLAD litigants and Massachusetts. The bipartisan legal group’s brief argued that the 1st Circuit is bound by the Supreme Court’s 1972 decision in Baker v. Nelson, which held that equal protection does not have to entail recognition of same-sex marriages.’ The brief maintains that Congress acted rationally in enacting DOMA, both fiscally and because it steers clear of administrative tangles that could arise from same-sex couples moving from state to state or seeking recognition of a foreign marriage certificate. In its superceding brief filed after the bipartisan legal group’s intervention, HHS argued that “Section 3 of DOMA unconstitutionally discriminates” by treating legally married same-sex couples differently than opposite-sex couples, “denying them the status, recognition, and significant federal benefits.” HHS also argued that the 1st Circuit should reconsider its precedent for examining classifications based on sexual orientation through a so-called “rational basis review,” which looks at whether the government is pursuing a legitimate government activity through a reasonable means to an end. Instead, the HHS argued that the 1st Circuit should apply the same heightened scrutiny the Supreme Court has applied to laws that affect other groups that have been discriminated against. The Massachusetts brief argued that “DOMA violates the Tenth Amendment because it usurps the Commonwealth’s exclusive authority to determine the marital status of its citizens for both federal- and State-law purposes.” It also claims that DOMA “violates the Spending Clause by requiring the Commonwealth to discriminate against its own married citizens on the basis of sexual orientation.” Gill’s brief argued that the discrimination at the heart of the case “plainly warrants heightened equal protection scrutiny under the applicable principles,” but agreed with the lower court that rational basis scrutiny is enough to invalidate DOMA. [N]one of the purported justifications offered by [the bipartisan legal group] come close to explaining why the federal government has a legitimate and rational reason to refuse to recognize the fact that Plaintiffs are (or were) married,” stated Gill’s brief. In an interview after the oral argument, Bonauto said, “We’re relying on the Constitution, and like should be treated alike. With DOMA, the federal government treats same-sex couples differently.” In a press conference outside the courthouse after the oral argument Coakley said “public opinion clearly is on our side. This country is about treating people fairly.” Coakley also said “things have changed mightily since 1996. Even if you could make tha t argument in 1996, you can’t make it now.” Sheri Qualters can be contacted at [email protected].

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