Paul Clement

One of the biggest lawsuits against the federal Defense of Marriage Act (DOMA) is back in court next week, and for the first time for any DOMA challenge, it is at the federal appeals level. It is also going before a three-judge panel comprised of two Republican and one Democratic appointee, though partisan affiliation has not been a good predictor of outcome in many gay-related cases in recent years.

The April 4 argument is a consolidation of three cases but is generally referred to as Gill v. Office of Personnel Management. The litigation challenged DOMA’s Section 3 restriction: 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.”

Gay & Lesbian Advocates & Defenders (GLAD) and the Commonwealth of Massachusetts won a ruling in the federal district court in Boston on the litigation in July 2010. At that time, they were opposed by the Obama Department of Justice. But in February 2011, the DOJ announced it would no longer argue that DOMA is constitutional and U.S. House Speaker John Boehner hired a private attorney, Republican former Solicitor General Paul Clement, to defend the law.

The Department of Justice will be in court April 4 in Boston. It will be represented by openly gay attorney Stuart Delery, who was promoted February 27 to serve as DOJ’s Acting Assistant Attorney General for the Civil Division.  While Delery’s name has not been on the DOJ’s briefs to the First Circuit U.S. Court of Appeals in the Gill case, he’s no stranger to gay litigation. He argued a class action lawsuit in the First Circuit that challenged the military’s “Don’t Ask, Don’t Tell” law in 2008. And, according to a 2007 article in the Washington, D.C., gay newspaper Metro Weekly, Delery is raising two children with his partner of nearly 20 years.

The DOJ brief filed in December argues that DOMA Section 3 violates equal protection principles and is unconstitutional. DOJ does not agree with the Commonwealth of Massachusetts, however, that Section 3 also violates the Tenth Amendment.

In his ruling, U.S. District Court Judge Joseph Tauro ruled that DOMA violates the Tenth Amendment to the U.S. Constitution by taking from the states powers that the Constitution gave to them. And he ruled that it 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.”

As always, there will be a debate over what level of scrutiny the court should apply when evaluating the constitutionality of DOMA. Judge Tauro used rational basis, a relatively easy standard for a law to pass. That is the standard of review urged by attorneys hired the Bipartisan Legal Advisory Group (BLAG) of the U.S. House to defend DOMA. DOJ and GLAD has urged heightened scrutiny.

BLAG’s attorney, Paul Clement, will be in court April 4, even though he will have just appeared before the U.S. Supreme Court this week in the landmark litigation seeking to overturn the Affordable Care Act. It will be the former Solicitor General’s first court appearance in the various DOMA cases he and his legal team are defending.

The lead attorneys opposite Clement will, of course, be GLAD’s Civil Rights Project Director Mary Bonauto and Massachusetts Chief of Civil Rights Division Maura Healey.

They will be appearing before a three-judge panel comprised of First Circuit Chief Judge Sandra Lynch, a Clinton nominee; Judge Juan Torruella, a Reagan nominee; and Judge Michael Boudin, a George H.W. Bush nominee.