The first DoMA challenge to go before a Court of Appeals was argued this morning, and, if I were plaintiffs' counsel, I would be pretty optimistic. Two judges on the panel - Chief Judge Lynch and Judge Boudin - look like probable votes to declare the law unconstitutional. For details, see Prop8TrialTracker's blogging of the arguments, or listen yourself to an audiotape of the argument (although the first 18 minutes are missing).
The most significant aspect of the argument (see Chris Geidner's report below) appears to have been that the Justice Department stated to the court that it would not defend the constitutionality of DoMA even under a rational basis test. The attorney representing DoJ at the argument said that the United States would take no position as its validity if evaluated under that standard. Attorney General Holder's letter on DoMA had indicated that DoJ considered DoMA to be unconstitutional only if heightened scrutiny were applied.
There is no deadline for when the Court of Appeals must issue its opinion, although I would be surprised if it isn't announced by the end of 2012.
At points in today's appellate arguments over the constitutionality of the federal definition of marriage contained in the Defense of Marriage Act, the four lawyers arguing the two cases to three judges appeared to be operating from different worlds. One of the only points of complete agreement was that DOMA was an unprecedented attempt by Congress to define marriage across all federal laws.
Whether arguing over the rationales advanced for DOMA's passage, the level of scrutiny from which courts should review laws that classify people based on sexual orientation, or the impact of Section 3 of DOMA on married gay and lesbian couples, the gulf between the lawyers at times prevented the sort of fireworks one might expect at a debate over a hot-button issue like "gay marriage," as it was called when DOMA was passed in 1996.
In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation.
Delery, representing the federal defendants in the two cases, Gill v. Office of Personnel Management and Massachusetts v. United States, was in the unusual position of agreeing with the plaintiffs on most points because of President Obama's February 2011 decision that Section 3 of DOMA is unconstitutional because such laws should be subjected to heightened scrutiny and that, accordingly, DOJ would stop defending DOMA in court.
The head of Department of Justice's Civil Division, Delery told Chief Judge Sandra Lynch and Judges Juan Torruella and Michael Boudin today that Congress's intent to single out gay and lesbian couples for discrimination was clear from the name of the bill itself: "It's a defense against something, and that defense was [against] same-sex couples."
As to the DOJ's prior position that DOMA should be found constitutional if subjected to the lowest level of scrutiny -- known as rational basis -- Delery noted that DOJ's prior briefs defending the law were superseded by its more recent filings and, hence, no longer the government's position. Specifically asked by Judge Boudin whether the law should be upheld under rational basis review, Delery said, "I'm not here to defend it on any basis."
When Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group, made his case defending DOMA, he pointed to the "uniqueness of the dynamic that Congress was facing in 1996" -- when Hawaii courts were considering whether same-sex couples were required to be allowed to marry under Hawaii law. Clement argued that Congress had a rational basis to act to "preserve its prior legislative judgments" by, in anticipation of a change in Hawaii law, preventing any federal recognition of same-sex marriage.
Clement also argued that, in accepting states' marriages for federal purposes prior to DOMA, there was both "uniformity" in the provision of federal benefits and "deference" to states' decisions about marriage -- but that the pending Hawaii decision at the time justified the congressional action in deciding to choose uniformity over deference.
Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs who brought the Gill lawsuit arguing that DOMA Section 3's federal definition of marriage violates constitutional equal protection guarantees, disagreed, telling the court, "The one constant of marriage law has been change."
Noting that even as states across the country disagreed in the past on whether interracial marriages should be recognized, "the federal government never weighed in for or against."
Bonauto went on to discuss how Clement's argument about uniformity didn't make sense to GLAD, stating, "Of course there's uniformity, but what is the reason for singling out one group? That's the question BLAG does not answer."
In his rebuttal argument, Clement did not directly respond to that, instead focusing on making the more general case that DOMA isn't an anti-gay law. Although DOJ, the Commonwealth of Massachusetts and GLAD argues that DOMA was motivated by anti-gay sentiment -- "animus," in court lingo -- Clement argued that the impact of DOMA was not all bad. "In some cases," he said, "it's a net financial benefit to the same-sex couple; in some, it's not."
Maura Healey, the head of the Massachusetts Attorney General's Office's Civil Rights Division, had made the opposite case in her time before the judges, arguing that, for Massachusetts residents, DOMA mandates the creation of "two different, unequal" types of marriage -- one for opposite-sex couples and another lacking in all federal recognition for same-sex couples.
Chief Judge Lynch, however, noted that Clement had earlier said that Section 2 of DOMA -- not at issue in today's case -- allows Massachusetts to do what it wants with regards to same-sex marriage and that, in Massachusetts's challenge to DOMA, Clement would say the Commonwealth is trying to make Massachusetts law drive federal policy.
Healey responded, "What that view requires is ignoring our nation's history," which always included that deference; "our jurisprudence history," which she said recognized the role of states in formulating marriage law; and "our congressional history," which she said shows Congress's awareness prior to 1996 of that state role.
In arguing that DOMA is unconstitutional under the Spending Clause, which is partially related to the Gill equal protection claim, and the Tenth Amendment, which protects state sovereignty, Healey faced opposition from Clement for BLAG on both points and Delery for DOJ on the Tenth Amendment claim.
In fact, one of the only points of agreement among the counsel appearing today was that DOMA represents an unprecedented attempt by the federal government to create a broad definition of marriage that applies across all federal law.
When Judge Torruella asked Clement if it was relevant that DOMA was, as Clement had put it, the "first comprehensive attempt" at such a definition, Clement said no -- pointing to the fact that, in his view, DOMA was "not in any way an effort to override states." He even acknowledged at one point, "The federal government isn't in the business of having its own marriage certificates."
Although the debate over the level of scrutiny to be applied to sexual orientation classifications was front and center today, Clement also made an argument that a prior case heard by the First Circuit regarding the constitutionality of "Don't Ask, Don't Tell" -- Cook v. Gates -- foreclosed the question by concluding that rational basis should apply.
Delery, referencing earlier DOJ filings in today's cases, stated that DOJ's preference is that the full court reconsider that decision from the Cook opinion by considering these cases en banc or that the three-judge panel take action, if possible, that would "allow the panel to accomplish that through other means."
Regardless of that decision -- and especially in light of DOJ's statement today that it will not defend DOMA even if considered under rational basis review -- GLAD's lawyers and Massachusetts's lawyers have made arguments to the court that DOMA should be struck down as unconstitutional under rational basis.
Although the judges didn't tip their hand today as to the outcome of the case, Clement's goal today was to convince the judges otherwise. And, if he failed to do that, Clement ended his argument by noting the great strides that have been made by gay and lesbian people in the political process and suggesting that there was "another path than constitutionalization" of the issue -- deferring to the political branches.
For his part, Delery made the strongest suggestion of the anticipated road ahead for these cases, regardless of the decision from today's argument.
In closing, Delery quoted at length from Supreme Court Justice Anthony Kennedy's opinion in Lawrence v. Texas, in which a split court held almost a decade ago that sodomy laws are unconstitutional. Referencing Clement's arguments about Congress's reasons for passing DOMA, Delery told the judges today that Kennedy held then that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Telling the court that gay and lesbian people, living "open and honest lives," have invoked those principles in this case, Delery said that the president and attorney general have done the same and urged the court to do so as well.
A three-judge panel of the First Circuit Court of Appeals is hearing arguments this morning on the constitutionality of DoMA. Kudos to Chris Geidner of MetroWeekly, who wrote this excellent background summary of the case:
The questions posed by the challenges to Section 3 of the Defense of Marriage Act are, on a surface level, quite simple: Does DOMA unconstitutionally discriminate against same-sex couples? Does DOMA unconstitutionally infringe on states' rights?
HOW DID THE CASES GET HERE?
The path that the cases have taken to get to this point, however, is very unusual. Gay & Lesbian Advocates & Defenders, in early 2009, filed the lawsuit challenging DOMA. Later, Massachusetts Attorney General Martha Coakley (D) filed a similar challenge. When the cases -- Gill v. Office of Personnel Management and Massachusetts v. United States -- were considered before U.S. District Court Judge Joseph Tauro, the federal government -- as the defendant in the cases -- defended DOMA in court. In fact, the Department of Justice, after losing before Tauro in July 2010, appealed the cases to the First Circuit.
Then, on February 23, 2011, DOJ's head, Attorney General Eric Holder sent a letter to House Speaker John Boehner (R-Ohio) informing him that President Obama and DOJ had determined -- in connection with another case -- that classifications based on sexual orientation like DOMA's Section 3 should be subject to a heightened scrutiny when examined by courts. Under this heightened scrutiny, Holder said, DOMA's federal definition of marriage should be found to be unconstitutional and, as such, DOJ would no longer be defending DOMA in court.
Following that decision, the House Republican leadership, holding a 3-2 majority on the House Bipartisan Legal Advisory Group, took on the defense of DOMA in several ongoing court challenges -- and new challenges raised since then. As such, BLAG will be defending DOMA in court in the morning, and DOJ will be -- with a few exceptions -- arguing that Section 3 of DOMA should be struck down.
Janson Wu, an attorney with GLAD who has worked on the case, tells Metro Weekly on the eve of the arguments, "It's certainly been a bit of a roller coaster. It's been two years since Tauro's decision came out, and in that intervening time, our plaintiffs have continued to be harmed and families across the country continue to be harmed."
The legal issues underlying the answers to the straight-forward questions -- particularly those raised in the Massachusetts case -- are more complex. Paul Clement, fresh off his U.S. Supreme Court arguments arguing against the constitutionality of the Affordable Care Act, will be doing his best on BLAG's behalf to show the First Circuit that DOMA was a proper exercise of congressional power.
GLAD Civil Rights Project Director Mary Bonauto, arguing for the Gill plaintiffs, and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey, arguing on behalf of Massachusetts, will be arguing that DOMA is unconstitutional.
DOJ's Civil Division's acting chief, Stuart Delery, will be arguing that GLAD is -- mostly -- right and that Massachusetts is right -- and wrong.
HAVE COURTS ALREADY DECIDED THE OUTCOME HERE?
GLAD and Massachusetts, as well as DOJ and the lower-court judge, have stated that they believe they do not. BLAG disagrees.
Baker was a case from 1972 in which the Supreme Court held, without argument, that a constitutional claim raised by a Minnesota same-sex couple seeking equal marriage rights did not present "a substantial federal question." Since the Supreme Court's subsequent decisions in Romer v. Evans, where the court struck down an anti-gay Colorado constitutional amendment in 1996, and Lawrence v. Texas, in which the court invalidated sodomy laws as unconstitutional in 2003, many court observers -- and lower courts -- have questioned whether Baker remains good law.
BLAG's lawyers argue, "The lower-court opinions declining to follow Baker, on which Plaintiffs rely, make basic errors this Court should not replicate." In explaining that, however, the BLAG lawyers primarily resort to declaring that Baker remains good law because Lawrence did not explicitly overrule it.
In Cook, the First Circuit considered in 2008 the constitutionality of the "Don't Ask, Don't Tell" policy and, in so doing, discussed the level of scrutiny to apply to the sexual orientation classifications.
GLAD's lawyers argue to the First Circuit, though, "The Cook court stated only that the Supreme Court's rulings in Romer and Lawrence did not 'mandate' heightened review." The Gill plaintiffs argue also that the decision regarding sexual orientation classifications was not necessary to the court's decision because it related to due process and not equal protection rights -- making the court's writings on equal protection "dictum," and not binding precedent.
BLAG responds that the issue was litigated sufficiently enough to be contained in the opinion. As for the latter point, BLAG's lawyers write, "Nor can Cook’s conclusion that rational basis scrutiny applies to sexual-orientation classifications be dismissed as mere dictum."
Assuming the court gets passed these preliminary questions, full attention will turn to DOMA.
IS THERE A REASON FOR DOMA?
In the first case, Gill v. Office of Personnel Management, GLAD, on behalf of several same-sex couples and surviving spouses of same-sex marriages, argue directly that federal benefits available to opposite-sex married couples are unconstitutionally denied to same-sex married couples.
In Judge Tauro's decision striking down Section 3 of DOMA, he wrote, "[T]his court is soundly convinced ... that the government's proffered rationales, past and current, are without footing in the realities of the subject addressed by [DOMA]."
Among the rationales cited by Congress in 1996 were: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.
Those, for the most part, have fallen to the wayside in the defenses of the law. Among the reasons given by DOJ in its initial defense of the law were that Congress could have chosen to adopt a "wait and see" approach to the vigorous debate over whether same-sex couples would have their marriages recognized in this country.
Of that, Tauro wrote, "But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance." And, to that secondary question, he decided, "The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states."
DOJ also argued that DOMA advanced the goal of "consistency in the distribution of federal marriage-based pecuniary benefits." Because of the broad application of DOMA's federal defintion of marriage to all uses of the word "marriage" or "spouse" in federal laws or rules, Tauro decided that such a rationale "strains credulity."
On appeal, BLAG has reiterated several of these rationales in its defense, highlighting the "cautious" approach taken by Congress in 1996.
"Congress could choose either to continue to adopt state definitions or continue to employ the traditional definition for federal law purposes, but it could not have it both ways," the BLAG lawyers wrote to the First Circuit. "If rational basis means anything, the choice as to which ... was surely one for Congress to make."
BLAG also reiterated "fiscal prudence" and "uniformity" as the "uniquely federal issues" that justify DOMA, but it is the question of whether rational basis review or some form of heightened scrutiny applies that could form the crux of Wednesday's arguments -- and the court decision to follow.
WHAT LEVEL OF REVIEW SHOULD COURTS GIVE DOMA?
Janson Wu, an attorney on GLAD's legal team for Gill, talked with Metro Weekly about the case today. "I think that the judges will certainly be interested in the standard of review," he said, noting that GLAD -- like DOJ -- believes that courts should apply heightened scrutiny when considering whether classifications based on sexual orientation violate constitutional equal protection guarantees.
But, Wu adds, "We also believe that DOMA fails under rational basis review as well."
It is this point, whether DOMA should be found constitutional under rational basis review -- the lowest level of review -- where DOJ's position could part ways with the plaintiffs. In filings, DOJ has maintained that, if rational basis review applies, that DOJ's prior arguments apply.
The decision of which level of scrutiny should be applied to government classifications of groups is laid out by the Supreme Court, as defined in Holder's letter to Boehner, by considering four factors: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals 'exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group'; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's 'ability to perform or contribute to society.'"
As such, DOJ determined that such heightened scrutiny should apply to classifications based on sexual orientation.
Of DOJ's position, Wu notes, "It was very affirming to have the federal government finally recognize that gay and lesbian people should be afforded heightened scrutiny ... so we're extremely happy for that stance that they've taken consistently.
"It's very powerful."
The question, which BLAG has raised and about which DOJ's Delery is likely to basked on Wednesday, is where does DOJ stand on DOMA's constitutionality if heightened scrutiny does not apply.
In the Gill case at the trial court level, Tauro decided that he didn't need to decide what level of scrutiny should apply because, in his view, the law is unconstitutional even under rational basis review.
Tauro wrote: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit."
He then concluded, "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."
WHAT ABOUT MASSACHUSETTS?
When Massachusetts Attorney General Coakley filed Massachusetts v. United States, her office argued that -- in addition to the harms DOMA causes to individual same-sex couples married under Massachusetts law -- Massachusetts itself suffers harms under DOMA.
There are two main arguments advanced by Massachusetts, one of which DOJ agrees with and the other of which DOJ continues to argue is incorrect. First, Massachusetts argues that DOMA violates the Spending Clause of the Constitution because it violates equal protection principles. In agreeing with that, Tauro applied the reasoning in his Gill opinion about the unconstitutionality of DOMA and concluded, "[A]s DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress' spending power."
DOJ agrees with that conclusion. DOJ, however, does not agree with Massachusetts that, independent of that, DOMA violates the Tenth Amendment, which protects state sovereignty.
Tauro found on this point that "[t]he history of the regulation of marital status determinations ... suggests that this area of concern is an attribute of state sovereignty, which is 'truly local' in character."
Accordingly, he concluded, "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."
DOJ counters in its argument to the First Circuit that "if this Court holds that Section 3 [of DOMA] does not violate equal protection principles, Section 3 applies in areas where Congress is acting in accordance with its constitutionally delegated powers."
At 10 a.m. Wednesday, April 4, the three-judge panel -- Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judges Michael Boudin, appointed by President George H.W. Bush, and Juan Torruella, appointed by President Ronald Reagan -- will consider these issues and, later, issue a ruling deciding whether to affirm or reverse Tauro's decisions.
Then, any party dissatisfied with the ruling could either seek en banc review, in which all of the First Circuit judges would consider the cases, or ask the Supreme Court to take the case.