Maura Healey

For the second time in three weeks, a federal judge in Boston heard arguments in a lawsuit that asks the court to strike down a significant part of the federal Defense of Marriage Act (DOMA).

In Commonwealth of Massachusetts v. Health and Human Services, U.S. District Court Judge Joseph Tauro is considering whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty when it comes to marriage licensing. On May 6, in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders, a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples—violates the state’s constitutional right, under the federal constitution, to sovereign authority to define and regulate the marital status of its residents.

DOMA, said Healey, is an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.” She likened DOMA to the Colorado Amendment 2 initiative that was struck down by the U.S. Supreme Court in 1996 with its Romer v. Evans decision. Amendment 2 said no law in the state of Colorado could prohibit discrimination based on sexual orientation.

“DOMA, like Amendment 2,” said Healey, “is a “wholesale, unprecedented denial of protection for a group of people.”

“Imagine the federal government giving money for the construction of schools and telling us that we can build them for white children but not for black children,” said Healey. Or imagine, she said, that the federal government would give money to subsidize health care for men, but not for women.

“That’s what DOMA does to Massachusetts,” said Healey. “It gives us funding but tells us to treat one category of married people differently than another. It forces us to violate equal protection.”

As GLAD did in Gill v. Office of Personnel Management, Healey urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny would require the government to come up with a fairly significant reason for treating gay couples differently under the law.

But Healey told Tauro that, even if he uses only the lowest level of review—simple rational basis—the government still cannot identify a reason to treat gay couples differently, other than animus. She noted the federal government has “disavowed” the reasons Congress offered in 1996 when it passed the law. And she said it has no evidence to support the reasons it offers now.

Christopher Hall, the attorney arguing on behalf of the federal government, repeated at least twice that the current administration “does not support DOMA.” He said it believes the law is discriminatory and that it should be repealed. But, he said, federal attorneys “have an obligation to defend it,” nonetheless.

Hall said the government’s two key points are: 1) Congress should be able to control the meaning of terms used in its own statutes, and 2) that Congress should be able to control how federal money is allocated.

When Judge Tauro echoed Healey’s contention that marriage has always been left to the states to define and regulate, Hall disagreed. He the federal government has been involved in defining marriage for immigration laws.

He said DOMA does not, as Healey contended, violate the 10th amendment. The 10th amendment says “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Hall said DOMA does not prevent any state from defining marriage or who may marry.” It simply defines marriage “for the limited purposes of federal benefits,” said Hall.

Tauro interrupted Hall at one point to note that his arguments were “interesting and valuable.”

“But we’re here dealing with something basic,” said Tauro. “Are these people married or not?”

“They are married in the state,” said Hall.

“But not for federal purposes?” asked Tauro.

“They’re not eligible for federal benefits,” said Hall.

Tauro prompted Hall to respond to Healey’s claim that DOMA was coercing Massachusetts into discriminating against gay couples by the threat of losing billions of dollars in federal funds in Medicaid (hence the identification of HHS as a defendant).

Hall said DOMA does nothing different than what the government did in 1984 when it conditioned federal funds for highway construction on each state adopting a federal drinking age minimum of 21.

At the end of the 90-minute argument, Tauro said he would issue his ruling “shortly.”

There was not as big a crowd May 26 for the Commonwealth’s case against DOMA as there was May 6 for GLAD’s case. Attorney Mary Bonauto—who has won enormous recognition and publicity for winning the landmark decision in 2003 that enabled gay couples to start receiving marriage licenses in Massachusetts in 2004—argued GLAD’s case against DOMA. And the federal government’s defense was delivered by the somewhat notorious Department of Justice official Scott Simpson. Simpson has been a key figure in the Obama DOJ’s controversial briefs defending DOMA and saying it was not discriminatory against gays.

But both the state’s lawsuit and that of GLAD are very precise attacks against DOMA—targeting just Section 3—and most legal observers believe both cases could very well go as high as the U.S. Supreme Court for resolution.

Attorney General Martha Coakley, who attended the oral argument Wednesday and sat in the public section, said, in her office’s original briefs on the case, that more than 16,000 same-sex couples have obtained marriage licenses in Massachusetts since May 2004, when the state began allowing gay couples to obtain marriage licenses the same as heterosexual couples.