Mary Bonauto

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday, July 8, ruled—in two separate lawsuits—that a critical part of the federal Defense of Marriage Act is unconstitutional.

In one lawsuit, Commonwealth of Massachusetts v. Health and Human Services, Judge Joseph Tauro, of the U.S. District Court in Boston, ruled that DOMA violated the Tenth Amendment to the U.S. Constitution by taking from the states powers that the Constitution gave to them. In the other lawsuit, Gill v. Office of Personnel Management, he ruled that DOMA violates the equal protection principles embodied in the due process clause of the Fifth Amendment in an effort to “disadvantage a group of which it disapproves.”

The Massachusetts lawsuit was led by Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, and the Gill case was led by Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders (GLAD). Bonauto and GLAD also led the landmark lawsuit that won equal marriage rights for Massachusetts couples in November 2003.

Both of the lawsuits heard by Tauro targeted Section 3 of DOMA. That section states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Neither lawsuit challenged the section of DOMA that enable any state to ignore valid marriage licenses issued to a same-sex couple in other states.

In ruling Section 3 of DOMA unconstitutional in Gill, Tauro stated that he could not find “any identifiable legitimate purpose or discrete objective” for DOMA to treat same-sex couples differently. DOMA, he said, “is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.”

That finding was important because, in 1996 decision, in Romer v. Evans, the U.S. Supreme Court ruled that animus cannot be used to justify a law.

GLAD legal director Gary Buseck noted that GLAD made the argument “very strongly” that DOMA was motivated by animus for gay people and that it gains considerable credibility from its confirmation by Tauro, a Nixon appointee whom Buseck describes as “very centrist and conservative.”

GLAD’s Bonauto had argued that the court should apply an even more stringent level of scrutiny—heightened scrutiny. But she said she was not disappointed that Tauro applied only rational basis in striking down DOMA.

“His ruling on rational basis alone,” said Bonauto, “is consistent with judicial minimalism in constitutional cases and deciding no more than is necessary.” Bonauto said GLAD would continue to argue for heightened scrutiny at the First Circuit, assuming the decision is appealed.

“It is a very strong opinion and very carefully reasoned,” said Bonauto, during a phone conference with reporters Thursday.

Attorney General Martha Coakley, who joined the conference call only very briefly at the beginning, called the Tauro decisions “a landmark step” for marriage equality and a “victory for civil rights in Massachusetts.”

Buseck said that, “as a technical matter,” the Gill decision involves just the eight plaintiff couples that participated in the lawsuit, though the state’s lawsuit could be seen as encompassing all gay married couples in Massachusetts. But before the ruling in either case extends beyond Massachusetts, he noted, it will require a ruling from the 1st Circuit U.S. Court of Appeals. A 1st Circuit ruling would extend to Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico. A U.S. Supreme decision would affect the country.

As of deadline, attorneys for the federal government on the two cases had not yet filed notice of appeal or a request that the judge stay the effect of his decision until an appeal can be decided. But the Obama administration has made clear that it intends to defend DOMA and an appeal is considered virtually inevitable.

Most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution, including Supreme Court nominee Elena Kagan who, during her confirmation hearing last week, declined to respond to questions concerning DOMA, noting that cases challenging the law were “on the road” to the high court.

The only other marriage case in federal court right now is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. That case, challenging a state law banning the right to obtain a marriage license in California as violating the equal protection, will likely be appealed to the much larger 9th Circuit, which covers California and eight western states.

Both the Massachusetts and Gill cases were argued in May, and the decisions released today are relatively quick turnarounds, given that some judges take almost a year to decide cases.

Tauro noted, in particular, that the Massachusetts case posed a “complex constitutional inquiry” about the power of the state to determine marital status versus “whether Congress may siphon off a portion of that traditionally state-held authority for itself.”

But, he concluded, “DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens” and “imposes [on the states] an unconstitutional condition on the receipt of federal funding.”

“It is a fundamental principle underlying our federalist system of government,” wrote Tauro in the Massachusetts decision, “that ‘[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.’ And, correspondingly, the Tenth Amendment provides that ‘[t]he 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’.”

Tauro also noted that the 1st Circuit U.S. Court of Appeals has upheld federal regulation of state family law “only where firmly rooted in an enumerated federal power.”

Tauro acknowledged that attorneys for the federal government argued that the authority for DOMA was grounded in the U.S. Constitution’s “Spending Clause.” That clause says Congress has the power to collect taxes and pay debts to promote the “general welfare” of the country.

But Tauro noted that DOMA goes far beyond provisions related to federal spending

“The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges,” wrote Tauro.

“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,” concluded Tauro in the Massachusetts opinion. “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.”

“By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals,” wrote Tauro in the conclusion of the Gill opinion. “To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, ‘there is no reason to believe that the disadvantaged class is different, in relevant respects’ from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”