In 2010 U.S. District Judge Joseph L. Tauro ruled that Section three of the Defense of Marriage Action was unconstitutional. In Gill v. Office of Personnel Management he found that Section 3 of DOMA (which became law in 1996, and prohibits the federal government from recognising same-sex marriages in states, like Massachusetts, that allow them) violates the Fifth Amendment*, and in Commonwealth of Massachusetts v. United States Department of Health and Human Services, the same section violates the Tenth Amendment and the Spending Clause.**
The US Department of Justice also finds DOMA unconstitutional (though it’s reasoning is slightly different, particularly with regard to Tenth Amendment), and has refused to defend it. It’s also suggested that DOMA, which classifies people on the basis of sexual orientation, should be subject to heightened scrutiny.***
So yesterday, when a three-judge panel of the US First Circuit Court of Appeals in Boston heard arguments on whether or not to nullify parts of DOMA that deny various rights and benefits to same-sex couples, the law was defended by Paul Clement, on behalf of the House of Representatives’ Bipartisan Legal Advisory Group. Stuart Delery, acting assistant attorney general, argued for the federal defendants–and explained why the judges should apply “heightened scrutiny.” Seven same-sex couples and three widowers were represented by Mary Bonauto, a lawyer for Gay & Lesbian Advocates & Defenders in Boston, who argued that DOMA “violates the equal protection guarantee regardless of what level of scrutiny applies.”
At issue is the constitutionality of the law’s denial to same-sex couples of the corollary rights and benefits of marriage: tax, health-care, and pension benefits.
Reading report of the questions directed to each attorney (see The Advocate, for in-depth reporting, and the New York Times for simplicity and clarity), it’s difficult to see how the court will disagree with Bonauto. It’s possible, of course, but right now I think the court will find against DOMA and the case will move fairly quickly to the Supreme Court.
There are other cases moving through the system. They will all converge on those nine justices in Washington, D.C. Assuming Justice Kennedy the swing voter, or one of the four liberal justices, doesn’t drop dead between now and then, I think DOMA is going down. And that’s how change happens: a little bit at a time, then all at once.
*”No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The key phrase here is Due Process, which is taken to include an equal protection clause. That is, you can’t discriminate against lesbians and gay men just because we’re lesbians and gay men.
** “The 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.” That is, Judge Tauro thinks Congress didn’t have the authority to pass the law in the first place: that by doing so, they are infringing on States’ sovereign power.
***There are three levels of judicial review. From least to most rigorous: rational basis review, intermediate/heightened/exacting scrutiny, and strict scrutiny. According to Wikipedia, “In the context of sex-based classifications, intermediate scrutiny applies to Constitutional challenges of equal protection and discrimination.”