BREAKING: Defense of Marriage Act found unconstitutional by district court

by: Adam Bink

Thu Jul 08, 2010 at 16:41

I haven't written much about it, but Gay and Lesbian Advocates and Defenders has been handling an ongoing case filed last year- Gill vs. Office of Personnel Management which challenged Section 3 of the Defense of Marriage Act on the grounds that it violates the equal protection, and denies marriage same-sex couples in Massachusetts over 1,000 federal rights to which they would otherwise be entitled (such as Social Security survivor's benefits, filing taxes jointly, obtaining immigration visas, and more).

Perhaps more well-known, due to her run for Senate, is that Massachusetts Attorney General Martha Coakley had filed a companion case- Commonwealth vs. Department of Health and Human Services, as well.

Today, the U.S. District Court Judge Joseph Tauro found that Section 3 of DOMA does indeed violate equal protection with respect to the GLAD case, and the 10th Amendment with respect to state sovereignty in the Massachusetts case, and is therefore unconstitutional. Very big news.

The key graph from the latter case:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

I will have more details as it comes in on where the case goes from here.

Update: For more background on the GLAD lawsuit, they have a nice summary posted here.

Update 2: My own musing, I have to think this may impact a ruling- either now or upon repeal- in Perry v. Schwarzenegger, which concerns whether Prop 8 violates the equal protection clause of the 14th Amendment.

Update 3: The full decision in the GLAD case can be found here.

Update 4: If you're interested in the personal aspect, the GLAD case concerns Nancy Gill and her spouse Marcelle Letourneau, who are legally married in Massachusetts. Nancy works for the US Postal Service, but is legally barred by DOMA from covering Marcelle on her health insurance plan, and must pay extra to insure her. As with other couples, Marcelle is not eligible for other spousal work-related benefits like Nancy's pension should something happen to her, or Social Security survivor's benefits.

Update 5: Got off a conference call with GLAD and Martha Coakley. The essentials:

• In terms of immediate impact, the court granted summary judgment. The decision was not stayed. So their plantiffs and other legally married same-sex couples in Massachusetts are currently eligible for Social Security applications considered without respect to DOMA, file taxes jointly (if it were the time to do so), etc. The case is not applicable to legally married same-sex couples outside Massachusetts borders, though.

• With respect to whether same-sex couples could retroactively do things like reclaim excess taxes files because of inability to files taxes jointly under DOMA, that is possible.

• The decision does not affect Section 2 of DOMA, which says that states or territories are not required to recognize another state's same-sex marriages.

• If the government appeals, the case will go to the 1st Circuit Court of Appeals in Boston. Mary Bonauto, the lead counsel, said "I fully expect" the government- meaning, Obama's Department of Justice- to appeal. Arguments are expected to take place in the fall.

• Speaking of Obama's Department of Justice, this sure would have made an interesting line of questioning for Elena Kagan.

• According to co-counsel, it would be "highly unusual for the Department of Justice not to appeal".

• In theory, the case could go to the Supreme Court.

Update 6: I asked Mary two questions- one on the timeline and whether these two cases will continue in tandem going forward. She said that given the simultaneous decision and the issues, she expects both to be argued at the same time at the 1st Circuit.

The second was the effects of the GLAD case winning and the Coakley case losing, or vice versa, vis-a-vis the actual effects on same-sex couples, given that they challenge different elements of the law. Mary said if either case prevails, either at the First Circuit or upon appeal at the Supreme Court, "it would be a death blow to DOMA."

The last question was her opinion on the impact on Perry v. Schwarzenegger, which I opined upon above. Mary said that the District Court Judge addresses many of the same issues in both cases with respect to the rationales for DOMA in 1996, and while the situations are different- plantiffs are married in this decision- if she were reading the decision, it would be good to see as an advocate for a win in Perry. We'll see.

I have a follow-up question with respect to the impact on Section 2 of DOMA (states/territories not required to recognize same-sex marriages from other states) that I'll try and get an answer to later tonight or tomorrow morning. Update 7: Okay, I have an answer to this. Essentially, local recognition takes precedence. Even if Section 2 today were repealed, states with, for example, mini DOMAs or constitutional amendments banning same-sex marriages on their books would not recognize same-sex marriages from, say, Massachusetts, despite the Full Faith and Credit Clause of the Constitution and how states have customarily recognized marriages in other states in the past. The thing to do to solve this problem is to go state by state and repeal anti-marriage equality statutes like Prop 8. In other words, the best way to secure recognition of a state is to secure recognition in a state.

But in general, Mary clarified her earlier comment that a win at the 1st Circuit or the Supreme Court would mean a "death blow" to Section 3 of DOMA only. Rep. Jerry Nadler's Respect for Marriage Act would do away with Section 2 of DOMA as the way to address that.

Good news, and we'll see what happens at the 1st Circuit if/when the Department of Justice appeals.

A statement from Freedom to Marry is in the extended entry.

"Today's historic ruling strikes down federal marriage discrimination enacted under the so-called "Defense of Marriage Act" in 1996.  DOMA created two classes of marriage - those the federal government respects and some it doesn't - denying married same sex couples and their families equal treatment and depriving them of the crucial safety-net that marriage brings.  In Gill et al. v. Office of Personnel Management, eight married same-sex couples and three widowers, represented by the Gay & Lesbian Advocates & Defenders, demonstrated that federal marriage discrimination harms gay and lesbian couples who are trying to make ends meet and protect their families.

Today's ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional.  The decision will be appealed and litigation will continue.  But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason.  Today's ruling provides increased momentum to the national movement to end exclusion from marriage and Freedom to Marry's Roadmap to secure the freedom to marry nationwide.  The crucial work of changing hearts and minds and winning the freedom to marry in more states is more urgent than ever as we build on today's momentum and encourage other decision-makers to do the right thing and end exclusion from marriage."