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May 10, 2010

Judge in Gill v. OPM presses DoJ for a rational basis for DoMA

According to two sources who covered the argument in Gill v. OPM, GLAD's challenge to Section 3 of DoMA (the section barring federal government recognition of same-sex marriages), Judge Joseph Tauro seemed from his questions to be applying a rational basis standard for evaluating DoMA's constitutionality. On May 26, Judge Tauro will hear arguments in the companion challenge to DoMA filed by the Commonwealth of Massachusetts.

The Boston Globe summarized the government's arguments:

W. Scott Simpson, a Justice Department lawyer defending the government, countered that the Obama administration agrees that the federal law is discriminatory and supports its repeal. But Simpson said the department is obliged to follow the longstanding practice of defending federal laws signed by previous presidents as long as the statutes are constitutional, which, he contends, the Defense of Marriage Act is.

“This presidential administration disagrees with DOMA as a matter of policy and would like to see it repealed,’’ he said, in a courtroom overflowing with supporters of gay marriage, including the 17 plaintiffs, who were allowed to sit in the jury box. “But that does not affect its constitutionality.’’

Congress had a legitimate rationale to pass the federal law 14 years ago, he said, given that some states had begun discussing legalizing same-sex marriage. The statute, he said, preserved the status quo — marriage reserved strictly for heterosexuals — and prevented federal agencies from having to keep track of which states had legalized gay marriages and which had not.

Lisa Keen described more of the back-and-forth: 

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.”

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