Mary Bonauto

U.S. District Court Judge Joseph Tauro is not your typical federal judge. He wears his black robe wide open so you can see his blue shirt and boldly striped tie. He stands throughout the proceeding at a lectern, studying the attorneys before him as intently as a line judge might do at Wimbledon.

He’s also not your typical Nixon appointee. He is, at 79 years old, the only one still serving in an active role on the federal district court bench. He’s unusually informal—beckoning the courtroom audience to give him a hearty “Good morning,” in return for his own greeting.

But gay legal activists feel they got a good hearing from Judge Tauro May 6, in the first federal district court hearing to examine the constitutionality of the Defense of Marriage Act.

The case was Gill v. Office of Personnel Management, a lawsuit brought by the Gay & Lesbian Advocates & Defenders, the group which won the landmark decision in 2003 which enables same-sex couples in Massachusetts to obtain marriage licenses the same as straight couples.

GLAD’s lawsuit is a very precise attack on DOMA—targeting just one section of the law—Section 3—that limits the definition of marriage –for all federal purposes—to only straight couples.

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation.

“It takes one class of married people in the Commonwealth,” she said, “and divides it into two.” And one class, same-sex couples, she said, is “utterly disregarded” under federal law.

Just as the federal government cannot take the word “person” and say it means only Caucasians or only women,” said Bonauto, it should not be able to take the word “marriage” and say it means only heterosexual couples.

Bonauto said the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, and noted that a House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

In making its case, GLAD also urged the court to give heightened scrutiny to DOMA. Heightened scrutiny requires the government to provide a strong justification for treating one group of citizens differently. Otherwise, the government can justify a law with just some simple “rational” reason.

To get heightened scrutiny, GLAD needed to convince the judge either that DOMA interferes some “fundamental right” of gay people or that gay people are a relatively powerless minority often targeted for discrimination The latter is referred to legally as a “suspect classification.” The Supreme Court has already ruled that marriage is a fundamental right, but no court has ruled yet that gays constitute a suspect class.

Tauro did not show much interest in examining either side’s position concerning suspect classification. Instead, he seemed determined simply to test out each of the government’s purported reasons for enacting DOMA. He asked Bonauto whether the government had legitimate arguments in saying DOMA was necessary to preserve a “status quo” concerning the federal understanding of marriage or to adapt federal law to the changing understanding of marriage incrementally.

“No, your honor,” said Bonauto. DOMA did not preserve a status quo, it upended one. Bonauto pointed out that, prior to DOMA, the federal government accepted each state’s definition of marriage.

It was on this point that Judge Tauro pressed the government most vigorously, asking Department of Justice attorney Scott Simpson, “When did it become a federal matter—dealing with marriage?”

Simpson, who has been DOJ’s point-man for defending DOMA, tried to step around the question, but Tauro re-directed his question more bluntly:

“Specifically, point to an incident,” said Tauro, when marriage has been a federal matter prior to DOMA. Simpson had to concede: “It’s true” that, up until DOMA, the federal government has “simply followed the states’ definition of marriage.”

Today’s argument represented a sort of Step One in a two-prong attack against Section 3 of DOMA. Judge Tauro will hear a challenge from the Commonwealth of Massachusetts, attacking Section 3 on other grounds. That case will be heard May 26th.

DOMA, passed in 1996 and signed into law by President Clinton, has two parts. Section 2 provides that no state can be “required” to recognize the marriage of a same-sex couple licensed in another state. Section 3 limits, for any federal purpose, the interpretation of “marriage” as being only heterosexual couples.

A year ago, there were five lawsuits in federal court seeking to establish equal rights for gay couples in marriage licensing. Two of those—Smelt v. U.S. and Bonilla v. Levine—have since been dropped. Now, there are these two DOMA challenges in Boston and Perry v. Schwarzenegger, the high-profile challenge to California’s Proposition 8 in a federal district court in San Francisco. The Prop 8 case went through a three-week long trial of expert witnesses in January and is scheduled to hold closing argument on June 16.

While the Prop 8 case challenges the same-sex marriage ban with a broad attack—for all same-sex couples in all arenas—the GLAD case is a precision attack. It identifies specific couples and individuals and demonstrates how Section 3 of DOMA adversely impacts their lives in specific arenas, such as Social Security benefits, taxes, survivor benefits, and health insurance.

The plaintiffs originally were eight married couples, as well as three gay individuals whose spouses have died. Soon after the lawsuit was filed, GLAD scored one victory. In June 2009, the U.S. Department of Justice announced that the Department of State would immediately amend regulations that prevented the issuance of new passports to gay spouses who changed their names after legally marrying. That dropped the plaintiff list today to three individuals and seven couples, including Nancy Gill, a federal postal worker, and her spouse, Marcelle Letourneau.