04/05/2012 10:22 am ET Updated Feb 02, 2016

For the First Time, a Challenge to the Defense of Marriage Act Is Heard by an Appeals Court

The First Circuit heard oral arguments Wednesday, April 4, in Gill v. OPM and Massachusetts v. HHS, the first challenge to the Defense of Marriage Act that has reached an appeals court, and a possible vehicle for a future Supreme Court challenge to the discriminatory Act. As noted Wednesday, Prop 8 Trial Tracker was not in Boston to cover the hearing, due to the court's ban on electronic devices in the courtroom. The audio from the hearing is now up on the court's website; however, there is a notice that because of a technical malfunction, the first 18 minutes were not recorded. This means that BLAG lawyer Paul Clement's opening arguments are not available.

Arguing for the Justice Department, Acting Assistant Attorney General Stuart Delery of the Civil Division of the DOJ said that the Government's position is that the Defense of Marriage Act cannot be defended on any basis, whether under rational basis review (the most relaxed standard of review and one that most laws pass) or some form of heightened scrutiny.

Delery went through the listed justifications for the Defense of Marriage Act, first discussing "traditional notions of morality." He pointed out that at least since Lawrence v. Texas, traditional notions of morality can't be used by themselves to justify laws. Delery then discussed the next purported justification for the Defense of Marriage Act: child rearing. Conceding that "creating a stable environment for procreation and child rearing" is an important governmental interest and that many laws are structured particularly to facilitate those ends, he told the judges that there's no reason to believe that the same-sex parents who are married under state law, as the Gill plaintiffs are, should be considered less than fully capable parents.

Delery then made the point that denial of benefits and recognition to same-sex married couples has a strong potential to destabilize their familial relationship on its own. If the goal is to provide stability to married couples to produce a favorable environment for successfully raising children, the Defense of Marriage Act itself makes that goal less obtainable.

As expected, the First Circuit case Cook v. Gates made its appearance in questions from the panel. Asked why Cook should not determine the type of scrutiny the First Circuit will apply in its decision in Gill, Delery first pointed to Cleburne v. Cleburne Living Center, a case that raised the possibility of some form of enhanced rational basis scrutiny rather than a more easily passable test. Delery mentioned, importantly, that no change has been made to the standard of review for laws affecting gays and lesbians in over 20 years, despite the fact that the legal landscape has changed dramatically. Bowers v. Hardwick has been overturned. Bowers had held that there is no fundamental right to intimate relationships between same-sex couples (referred to by the Bowers majority derisively as the right for "homosexuals to engage in sodomy"), and it was overturned in 2003 by Lawrence v. Texas, which said there is a right to personal intimacy.

The next lawyer up to the podium was Mary Bonauto from GLAD. Though she framed the law as failing even rational basis review, she said GLAD agrees with the Justice Department that heightened scrutiny should apply to laws affecting gays and lesbians.

The central issue presented by this case, she suggested, is "what federal interest is served by singling out only the marriages of same-sex couples" for across-the-board disrespect. Bonauto said the Defense of Marriage Act offers no encouragement or protections to heterosexual couples whatsoever and thus can't be seen as furthering successful child rearing or keeping families stable. Indeed, she noted that the law affects same-sex couples who have children as much as it affects those without children.

Taking on purported concerns about the "public fisc" and "preserving the status quo," she said the fact that Congress wanted to preserve the status quo before state laws changed to favor same-sex relationships should have no bearing on the current situation. Laws and opinions have changed; same-sex couples can now get married in several states. That "caution" would be suggested in the first place suggests that there is a "problem" here that needed to be addressed. And as she said, there was no problem for the Defense of Marriage Act to solve. She said that Congress essentially put a "no gays need apply" sign over the entire U.S. Code, and that makes these cases, like Romer and Moreno, designed particularly for either a heightened form of rational basis review or heightened/strict scrutiny.

Next up was Maura Healey arguing for the Commonwealth of Massachusetts. She argued that the Defense of Marriage Act violates both equal protection principles and state sovereignty found in the Tenth Amendment. On the Tenth Amendment claims she stated that the Defense of Marriage Act makes gay and lesbian couples in Massachusetts "'sort of' married" and that it takes away from Massachusetts a single marital status and requires the state to treat similar people differently based on marital status.

The Commonwealth's central argument is that "where Congress chooses to use the term marriage, they have to accept state marriage laws under the Tenth Amendment." According to Healey, who referenced a historian's amicus brief, Congress considered a uniform marriage law early in the 20th century and rejected it because of federalism concerns.

Turning to the equal protection analysis, Healey made an interesting assertion: that courts should apply heightened scrutiny, because Cook v. Gates does not preclude it. The Cook case did not involve briefing or a decision on heightened scrutiny, and therefore, reliance on that case is suspicious. She raised the suggestion that the Defense of Marriage Act requires Massachusetts to violate equal protection, pointing to the situation in Massachusetts with military burials. Today, gays can serve in the military openly, but gay service members cannot be buried with their spouse. Massachusetts is required to separate them into different sections for purposes of burial. She closed on that note.

Paul Clement, fresh off his three-day oral argument before the Supreme Court on the health care reform law, had reserved some time after his opening statements. He stated that he wanted to make "four points" in rebuttal. After claiming that the Justice Department "declined to answer" whether the Defense of Marriage Act passes rational basis scrutiny, a judge asked about interracial marriage: "If this were about race, what standard of review would apply?" Clement said heightened scrutiny would likely apply. Echoing a question asked by the Ninth Circuit in Perry v. Brown, the challenge to Proposition 8, the judge followed up by asking, "Why is that different?" Clement answered by saying that the other side has tried to draw from the fact that Congress didn't address interracial marriage. But under their argument, Congress couldn't do that anyway. Continuing with his points, Clement asserted that some effects of the Defense of Marriage Act are positive for gays and only some are negative; therefore, there is no animus against gays and lesbians in the law. He then asked why we can't allow the issue to be resolved in "the democratic process."

Delery at the Justice Department made a strong closing statement, saying that while BLAG has emphasized that it would be new for the federal government to recognize states' decisions to allow same-sex marriage, the dissenters in Lawrence made that argument, as well, and Justice Kennedy, at the end of the decision, responded by saying, "[T]imes 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." Delery wrapped up saying, "Within the lifetimes of many people here, gay and lesbian members of our society have increasingly decided to live open and honest lives, including with respect to their personal relationships. They have, in Justice Kennedy's terms, invoked the constitution's principles and made a claim to full citizenship. The government should take their claim to equal protection of the law seriously and engage it on the merits, and the president and Attorney General have done that in reaching their conclusion about the constitutionality of the Defense of Marriage Act."

From here, the First Circuit will make its ruling sometime over the next few months. Then, the losing party to the case can either ask for an en banc review of the case by all sitting First Circuit judges, or they could appeal directly to the Supreme Court.

This analysis is also featured at Prop 8 Trial Tracker.