Tony West

The U.S. Department of Justice filed its brief January 13 with a federal appeals court that will hear the government’s appeal of two district court decisions that found the Defense of Marriage Act unconstitutional.

The cases are Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, and Massachusetts v. Department of Health and Human Services, brought by the state.

DOJ, led by Assistant Attorney General Tony West, argues that U.S. District Court Judge Joseph Tauro in Boston erred last year in finding one section of the federal Defense of Marriage Act (DOMA) unconstitutional.

It also argues that “back-and-forth changes” such as those experienced by California concerning the recognition of same-sex marriages “have the potential to cause inequities in the operation of federal programs, and could result in administrative difficulties across a variety of federal programs.”

“Should [a federal] agency begin awarding benefits in response to court decisions that might later be overturned?” asks the brief. “How should the agency treat a couple who is married, then moves to a state where that marriage is not recognized? These questions highlight the administrative difficulties that federal agencies might face if federal law were automatically tied to state law in an area subject to substantial and sometimes rapid change.”

Mary Bonauto, civil rights director at GLAD, says the “touchstone is whether the marriage is valid under state law.”

“Even if a state reversed itself on marriage licensing for same-sex couples by passing an amendment, as happened in California,” said Bonauto, “that change does not affect the validity of the existing marriages.”

In response to the concern about same-sex couples moving from one state to another, said Bonauto, “The general rule is that if a couple is considered married in the state of their residence at the time they apply for a federal marital benefit, then they are married for purposes of that benefit even if they later move to a state that disrespects their marriage.”

Last July, Judge Tauro ruled, in Gill, that DOMA violates the equal protection and due process rights in the U.S. Constitution, and, in Massachusetts, that DOMA violates the 10th Amendment right to exercise control of certain state issues.

Evan Wolfson, head of the national Freedom to Marry group, said he “regrets” DOJ “continues to defend a law that President Obama has repeatedly said is discriminatory.”

“Also disappointing is that the Justice Department is urging the court to give this discriminatory law a presumption of constitutionality,” said Wolfson. “…  The Justice Department should be asking the courts to examine DOMA with skeptical eyes, not rubberstamp discrimination.”

DOJ’s brief argues that the appeals court should use only the most minimal standard—rational basis—in scrutinizing the reasons the government gives to justify DOMA’s ban on recognition of married same-sex couples when it comes to having access to federal benefits made available to married straight couples. It then claims that the rational justifications behind DOMA are:

• to preserve a national status quo at the federal level regarding marriage,
• to ensure “uniform application” of federal law regarding marriage benefits, and
• to show respect for each state’s sovereignty in developing its own policy concerning marriage.

The latter justification will probably make for an interesting discussion before a three-judge panel of the First Circuit U.S. Court of Appeals later this year. The First Circuit is located in Boston, Massachusetts, which famously became the first state to honor its state constitutional mandate of equal protection with regards to the issuance of marriage licenses.

The Massachusetts Attorney General’s office argued, in its district court brief, that DOMA is not showing respect for the sovereignty of Massachusetts.

“Instead, Congress chose to force Massachusetts (and other States) to violate the equal protection rights of its citizens or risk federal funding,” argued Massachusetts’ brief. “ That is not neutrality; rather, it significantly burdens the ability of States to adopt any definition of marriage that does not match the federal one….”

But while arguing that Congress needs to show respect for each state’s sovereignty, DOJ also argues Congress “could” reasonably conclude that a “uniform federal definition for the purposes of federal law would most consistently address variations between states that permit same-sex marriage and those that do not.”

“Without DOMA,” said DOJ, “federal benefits would vary for same-sex couples from state to state.”

Of course, that’s true for heterosexual couples, too. Only those straight couples who are married are eligible to receive federal marriage benefits. But DOJ adds that “while it may be preferable as a policy matter for Congress to have provided the same benefits to all married couples, the uniform path that Congress chose was permissible.”

The Defense of Marriage Act (DOMA) was introduced by U.S. Rep. Bob Barr (R-GA) and signed into law in 1996 by Democratic President Bill Clinton. Wolfson noted that both have since “repudiated” the law.

GLAD and the Massachusetts Attorney General’s office both filed lawsuits challenging DOMA’s Section 3, which limits the definition of marriage for federal purposes to one man and one woman.

There are three other cases challenging DOMA now in the federal courts. GLAD and the ACLU also filed two other lawsuits challenging DOMA—Pederson v. OPM in a Connecticut federal district court and Windsor v. U.S. in a New York federal district court. Both of these cases, if appealed, will come before the 2nd District U.S. Court of Appeals. Lambda Legal Defense argued its case, Karen Golinksi v. OPM, in federal district court in San Francisco last month. In that case, Lambda’s Marriage Project Director Jenny Pizer is arguing that 9th Circuit court employee Golinski should be able to obtain health coverage for her same-sex spouse the same as other federal court employees can obtain for their spouses. OPM, headed by openly gay appointee John Berry, instructed the 9th Circuit’s employee insurance carrier not to enroll Golinski’s same-sex spouse for coverage. The case is awaiting a decision from U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush.