A federal appeals court in Boston heard oral arguments Wednesday on the landmark rulings that found a key provision of the Defense of Marriage Act unconstitutional. The hearings were also the first time that DOMA has been argued in a federal appeals court.
The historic hearings in the First Circuit were followed two July 2010 rulings by a federal judge in Boston that struck down Section Three of the Defense of Marriage Act. Section Three prohibits federal recognition of same-sex couples and denies all federal benefits, such as Social Security and health care. U.S. District Judge Joseph Tauro, a Nixon appointee, ruled in two separate cases brought by the Commonwealth of Massachusetts and Boston-based Gay & Lesbian Advocates and Defenders (GLAD).
Initial arguments focused on the "rational basis" standard of scrutiny, reports Washington Blade's Chris Johnson.
Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.
Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples. Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”
Delery’s position is significant because U.S. District Judge Joseph Tauro in 2010 ruled in favor of plaintiffs on the basis that DOMA didn’t pass the rational basis standard review, or a rational means to a legitimate governmental end. Judges on the First Circuit will have to decide whether to affirm or overrule this decision.
Delery maintained that the name “DOMA” itself indicates that the anti-gay law was intended to discriminate against LGBT families. "It was a defense against something, and that something was same-sex couples," Delery said.
The two cases are Commonwealth of Massachusetts v. Health and Human Services and Gill v. Office of Personnel Management.
Defending the anti-gay law in federal appeals court was Paul Clement, the former solicitor general in the George W. Bush Administration. House Speaker John Boehner hired Clement last year to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.