Federal Judge Strikes Down Portions of DOMA

In two cases involving Massachusetts couples, district court says US can’t deny recognition

In a stunning double win in the battle to advance the marriage equality cause, a US district court judge in Boston on July 8 has struck down Section 3 of the Defense of Marriage Act, which bars federal recognition of legal marriages by same-sex couples, in separate cases brought by the Commonwealth of Massachusetts and married gay and lesbian couples.

In Gill et al v. Office of Personnel Management, Judge Joseph L. Tauro ruled that Section 3 is unconstitutional in the context of claims brought by seven married same-sex couples and three widowers from Massachusetts. The plaintiffs challenged the denial of federal recognition in a variety of areas, including income tax filing, Social Security, and benefits available to US government employees and retirees.

Tauro found that Section 3 violated the equal protection rights of the gay and lesbian plaintiffs since, as a class, they received differential treatment from other married couples in Massachusetts. The judge concluded that the ban on federal recognition could not even survive a rational basis test, the most lenient form of judicial review.

Tauro never had to decide the issue of what level of scrutiny the plaintiffs’ claims merited.

In Commonwealth of Massachusetts v. US Dept. of Health and Human Services, et al, Tauro found that in forcing the state to discriminate against lesbian and gay married couples regarding their participation in two joint federal-state programs dependent in part on US government funding, DOMA violated the Tenth Amendment by usurping authority left exclusively to the state.

Neither lawsuit challenged Section 2 of DOMA, which purports to give states the right to bar marriage by same-sex couples and recognition of such marriages from other jurisdictions.

In a press teleconference late in the afternoon on July 8, Mary Bonauto, the civil rights project director at the Gay & Lesbian Advocates & Defenders (GLAD), the public interest law firm that brought the Gill suit, explained that these cases were not “right to marry” cases — as is the challenge currently before a San Francisco federal district court judge regarding California’s Proposition 8 — but rather “marriage recognition” suits.

The victory currently applies only in Massachusetts, the jurisdiction covered by the district court where Tauro serves. GLAD said the Gill victory clearly applies to the plaintiffs, and could benefit all same-sex married couples and widowers in the state, though the group had not yet completed that analysis.

The ball is now in the Obama administration’s court to decide whether to appeal the rulings to the 1st Circuit Court of Appeals.

Gary Buseck, GLAD’s legal director, said it would be “highly unusual for the administration not to appeal.” The group said a decision by the Justice Department is likely within 60 days.

In a roundtable with LGBT media on July 1, Melody Barnes, President Barack Obama’s chief domestic policy advisor, said, “The president believes that given his office, he has to defend the law… We believe it is our obligation to defend a law if Congress had a rational basis for passing a law.”

Tauro’s decision regarding the individual plaintiffs, of course, struck right at the question of whether there is a rational basis for Section 3.

Buseck said he believes that Tauro’s decision gives the group “about as good a platform as possible for the First Circuit,” should a government appeal ensue.

The First Circuit has jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico, so victory there would also apply to married same-sex couples in New Hampshire, where gay marriage has been legal since last year.

Although the Gill and Commonwealth cases are distinct, Bonauto predicted that they would continue moving through the federal courts in tandem. Victory on appeal in either case, she said, would be a “death blow” to Section 3.

Buseck said he could not foresee these cases being joined with the federal court challenge to Prop 8, since that suit seeks to establish the right to marry and does not involve couples already married. (The 18,000 couples whose marriages in California prior to the passage of Prop 8’s passage remain valid are not parties to the lawsuit there.)

Asked how the group viewed the prospects should the Supreme Court hear these cases after 1st Circuit review, Buseck was strikingly upbeat.

“As the court is constituted now, on this claim, we feel pretty confident that we can persuade them,” he said, disputing the assumption that there would end up being a left-right split on the court, with Justice Anthony Kennedy playing his frequent role as the swing vote.

The Commonwealth case, Bonauto noted, is centered on the question of federalism. Underscoring Buseck’s point, she said, “This is not really a 5-4 case. It has much broader appeal.”