THE VOICE OF CHICAGO'S GAY, LESBIAN, BI, TRANS AND QUEER COMMUNITY SINCE 1985

The First Circuit panel said that, under simple rational review of the law, the same-sex couples seeking to overturn DOMA "cannot prevail." However—importantly—the panel also said that, because DOMA implicates both equal protection and federalism, the law requires "a closer-than-usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage."

In its 33-page decision, the judges affirmed the U.S. District Court ruling that DOMA violates the equal protection rights guaranteed by the U.S. Constitution. It did not agree that DOMA also violates the spending clause or Tenth Amendment rights of states. While DOMA does "intrude" into a realm of law "primarily confided to state regulations," said the panel, "Nevertheless, Congress surely has an interest in who counts as married."

"That Congress has traditionally looked to state law to determine the answer [ to what defines marriage ] does not mean that the Tenth Amendment or Spending Clause require it to do so."

"However," said the panel, "the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage. ... These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."

It then proceeded to reject—using an "intensified scrutiny"—each of the arguments put forth by the Bipartisan Legal Advisory Group ( BLAG ) , a Republican-dominated Congressional committee that authorized an outside attorney to defend DOMA in federal lawsuits around the country. Those arguments included such things as "preserving scarce government resources," "support child rearing," and to preserve the traditional definition of marriage.

"For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute," said the panel. "… But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern."

"To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today," said the panel. "One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

"We think that this is a fantastic decision that is crisp and solid and well-reasoned," said GLAD's Bonauto. "And it's really rooted in the last 50 years of equal protection jurisprudence and federalism jurisprudence."

U.S. Rep. Barney Frank, D-Mass., said the ruling "vindicates the decision by the Obama administration not to defend the "Defense of Marriage Act," which denies rights to millions of Americans. It is also a tribute to the thoughtful, principled legal strategy by Mary Bonauto and her associates at Gay & Lesbian Advocates & Defenders."

"I am confident that the U.S. Supreme Court will add its support for this decision which is so firmly grounded in long-standing American constitutional principles," said Frank.

The universal reaction among LGBT-rights groups was similar.

"Whether it is California's Proposition 8 or the so-called Defense of Marriage Act, court after court has affirmed that marriage discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional," said Adam Umhoefer, executive director of the American Foundation for Equal Rights, which has been pressing the challenge to California's same-sex marriage ban. That challenge has succeeded at the U.S. district court and Ninth Circuit panel levels. It is now awaiting word on whether the full Ninth Circuit will hear an appeal of those lower court decisions.

In coming to its decision, the panel decided that an earlier First Circuit decision on a case challenging "Don't Ask, Don't Tell" "has already declined" to grant "suspect classification" to laws based on "sexual preference." And the panel said it was neither empowered nor willing to "create such a new suspect classification for same-sex relationships."

It also ruled that, while a 1972 U.S. Supreme Court dismissal of Baker v. Nelson is "precedent binding on us," subsequent U.S. Supreme Court decisions—in such cases as Romer v. Evans and Lawrence v. Texas—make its usefulness in the current cases limited. In Baker, a gay couple in Minnesota appealed a ruling of their state's supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple's appeal. BLAG attorney Paul Clement had argued the First Circuit was bound to do the same with the DOMA challenge.

The panel stayed its decision, meaning the federal government is not obliged to immediately begin recognizing same-sex marriages. But Mary Bonauto, lead attorney for same-sex couples on the case, said she expects the decision will be appealed in short order.

The decision was written by Judge Michael Boudin and joined by Chief Judge Sandra Lynch and Judge Juan Torruella. The panel heard oral arguments in the two cases—Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services—on April 4.

The "case" before the panel was a consolidation of three cases, brought by Gay & Lesbian Advocates & Defenders ( GLAD ) and by the Commonwealth of Massachusetts. They are generally referred to as Gill v. Office of Personnel Management.

In Gill, GLAD argued that DOMA's ban on federal recognition of same-sex marriages violates the equal protection of same-sex couples. In Massachusetts v. HHS, the state argued that it interfered with the state's authority to regulate marriage. In Hara v. OPM, GLAD argued a very narrow case involving the benefits due to one plaintiff, Dean Hara, the widow of the late U.S. Rep. Gerry Studds.

U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution's guarantee of equal protection, its Spending Clause and the Tenth Amendment right of states to sovereignty.

Section 3 of the federal law, passed in 1996, states that, for federal government purposes, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.

©2012 by Keen News Service. All rights reserved.

Federal Court Rules DOMA Unconstitutional: Lambda Legal Celebrates

"The so-called Defense of Marriage Act is being challenged in multiple cases and it won't be long before that bad law is gone for good."

( New York, May 31, 2012 ) - Today the Court of Appeals for the First Circuit upheld a lower court ruling finding the so-called Defense of Marriage Act ( DOMA ) unconstitutional. Lambda Legal issued the following statement from Lambda Legal Marriage Project Director, Camilla Taylor:

"We are thrilled that another court - this time, the Court of Appeals for the First Circuit - has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.

"The so-called Defense of Marriage Act is being challenged in multiple cases and it won't be long before that bad law is gone for good.

"We congratulate our colleagues at Gay and Lesbian Advocates and Defenders ( GLAD ) and the State of Massachusetts for achieving this wonderful victory."

Statement by National Center for Lesbian Rights

( San Francisco, CA, May 31, 2012 ) —Today, the United States Court of Appeals for the First Circuit ruled that the so-called Defense of Marriage Act ( DOMA ) is unconstitutional. The court held that DOMA, which prevents the federal government from recognizing the marriages of same-sex couples even in states where those marriages are valid, violates the U.S. Constitution's guarantee of equal protection of the laws.

The ruling came in a case filed in 2009 by Gay and Lesbian Advocates and Defenders on behalf of a group of married same-sex couples who were denied federal spousal benefits such as Social Security and government employee benefits, as well as a parallel case filed by the Commonwealth of Massachusetts. Today's opinion upheld a 2010 decision in which U.S. District Judge Joseph Tauro ruled DOMA unconstitutional. Since Judge Tauro's decision, two other district judges and 20 federal bankruptcy judges have ruled that DOMA violates the Constitution's Equal Protection Clause, and several additional challenges to DOMA are pending in courts across the country.

Writing for a three-judge panel, Judge Michael Boudin observed that DOMA inflicts serious harms on married same-sex couples and represents an unprecedented federal intrusion on the traditional authority of states to regulate marriage. In light of these facts, the panel held that none of the justifications offered by Congress in enacting DOMA was sufficient to uphold it. The court found that there is no "connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage," and that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

The court stayed its decision to permit the parties an opportunity to request review by the United States Supreme Court. A party may either request en banc review by all five active judges of the First Circuit within 14 days, or may file a petition requesting review directly with the Supreme Court within 90 days. There is no prescribed time for the Supreme Court to decide whether to accept a case, but the Court generally does not decide to take a case until at least 30 days after a petition for review is filed.

Statement by NCLR Legal Director Shannon Minter, Esq.: 

"Today's decision, authored by one of the most well-respected conservative federal judges in the country, sounds the death knell for this discriminatory law. Every day that DOMA remains on the books, it is causing serious harm to same-sex couples and their children and branding all lesbian, gay, and bisexual people as inferior. The Supreme Court should affirm this decision so that we can put this shameful period in our nation's history behind us. The federal government has no interest in treating people differently because of their sexual orientation or gender identity."

Statement by Servicemembers Legal Defense Network:


( Washington, DC ) Army Veteran and Servicemembers Legal Defense Network ( SLDN ) Executive Director Aubrey Sarvis applauded a decision by the First Circuit Court of Appeals, which today ruled the so-called Defense of Marriage Act ( DOMA ) unconstitutional.

"At SLDN, we applaud the court for affirming that legal marriages in the states - and all the rights and protections that come with those marriages - should be recognized and respected by our federal government. Though a narrow decision, this important victory nonetheless paves the way further for litigation like McLaughlin v. U.S., SLDN's case on behalf of married gay and lesbian service members and veterans who are denied equal recognition, support and benefits for their families by this discriminatory law. We congratulate the GLAD attorneys and plaintiffs in this case and look forward with them to the day when every American - especially those putting their lives on the line to protect our nation - has the freedom to marry the person they love, knowing that their commitment will be honored by their government," said Sarvis.

The Trevor Project Responds to Unanimous DOMA Ruling

May 31, 2012 ( West Hollywood, CA ) - Today a three-judge panel from the U.S. Court of Appeals for the First Circuit unanimously ruled that Section Three of the so-called Defense of Marriage Act, which discriminates against the marriages of same-sex couples at the federal level, is unconstitutional. Abbe Land, Executive Director and CEO of The Trevor Project the nation's leading provider of crisis intervention and suicide prevention services to lesbian, gay, bisexual, transgender and questioning teens and young adults issued the following statement:

"Today's landmark decision illustrates how far America has come since the Defense of Marriage Act was passed in 1996. The First Circuit court's ruling has shown Americans that the U.S. government values and supports the marriages of lesbian, gay, bisexual, and transgender people. This affirmation sends a message of hope to youth that they can dream about a future of full equality."

Amnesty International USA Welcomes Court Ruling the Defense of Marriage Act Unconstitutional

( Washington ) -- Frank Jannuzi, head of the Washington office, Amnesty International USA, made the following comments today in reaction to a ruling by the U.S. Court of Appeals for the First Circuit in Boston, which declared that the section of the Defense of Marriage Act that denies federal benefits to lawfully married same-sex couples is unconstitutional:

"We welcome this ruling against the discriminatory Defense of Marriage Act ( DOMA ) . The Court has told the federal government that it can no longer deny to lawfully married same-sex couples the rights and privileges that every heterosexual couple enjoys. This ruling brings us one step closer to ending out nation's shameful institutional discrimination against citizens who are members of the lesbian, gay, bisexual, and transgender ( LGBT ) community.

"The Court's ruling reflects the rising tide of outrage over the inequality inherent in laws denying marriage equality to all citizens. We hope that if this case reaches the U.S. Supreme Court, the nine justices will uphold the ruling by the First Circuit. Eliminating DOMA would be an important step forward in one of the defining civil rights struggles of our time."

Amnesty International opposes the Defense of Marriage Act as blatant discrimination against LGBT couples. The organization believes the Constitution of the United States guarantees full equality under the law, including in questions of marriage, for all individuals, regardless of sexual orientation or gender identity.

HRC Applauds Federal Appeals Court Ruling Against Defense of Marriage Act

WASHINGTON — The Human Rights Campaign, the nation's largest lesbian, gay, bisexual, and transgender ( LGBT ) civil rights organization, today applauded a ruling by the United States Court of Appeals for the First Circuit in which it upheld a lower court's decision that the denial of federal rights and benefits to lawfully-married same-sex couples is unconstitutional. The ruling — authored by President George H.W. Bush appointee Judge Boudin for the three judge panel — comes in two cases: Gill v. Office of Personnel Management, brought by Gay & Lesbian Advocates & Defenders on behalf of married Massachusetts same-sex couples who were denied specific federal rights and benefits and Massachusetts v. Department of Health and Human Services, brought by the Commonwealth of Massachusetts itself.

"This ruling is a historic victory for loving gay and lesbian couples and their children," said HRC President Joe Solmonese. "For the first time, a federal appeals court has recognized that our constitution will not tolerate a law that forces the federal government to deny lawfully-married same-sex couples equal treatment. The writing is clearly on the wall for the demise of this unjust and indefensible law that hurts real families."

Currently, six states and the District of Columbia allow same-sex couples to marry. This year, legislatures in Maryland and Washington State approved marriage equality laws, but they are not yet in effect and are likely to be subject to popular referenda. Under a 1996 law, the Defense of Marriage Act ( DOMA ) , even lawfully-married couples cannot be recognized by the federal government, and as a result are denied access to more than 1,100 rights, benefits and responsibilities under federal law. These include Social Security survivor benefits, federal employee health benefits for spouses, protections against spouses losing their homes in cases of severe medical emergencies, the right to sponsor a foreign born partner for immigration, the guarantee of family and medical leave and the ability to file joint tax returns, among many others.

"We applaud GLAD, the Commonwealth of Massachusetts and the courageous plaintiffs for their incredible efforts on behalf of gay and lesbian couples in Massachusetts and across the nation," said Solmonese.

In July 2010, a federal district court judge ruled in the Gill and Massachusetts cases that DOMA is unconstitutional. Two other federal district courts and a federal bankruptcy court have subsequently agreed. Because the Obama Administration's Justice Department has decided not to defend DOMA in court, the House Republican leadership through the Bipartisan Legal Advisory Group is currently defending DOMA. They are likely to appeal today's ruling, either to larger panel of the First Circuit or to the U.S. Supreme Court.

The Human Rights Campaign is America's largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

The Williams Institute responds

LOS ANGELES — Earlier today, the U.S. Court of Appeals for the 1st Circuit in Boston held a key section of the Defense of Marriage Act ( DOMA ) to be unconstitutional, in an historic ruling by the court. Section 3 of DOMA defines marriage as a union between a man and a woman for federal law purposes. The court ruled that this part of the law discriminates against legally married same-sex couples, depriving them of federal rights and benefits offered to married heterosexual couples.

Currently, six states and the District of Columbia allow same-sex couples to marry. Maryland and Washington State passed laws earlier this year to open marriage to same-sex couples, and voters in those states may see referenda on those laws in November. Numerous other states recognize the legal marriages of same-sex couples under civil union or domestic partnership laws, or based on state Attorney General opinions.

Jennifer Pizer, Williams Institute Legal Director, has a strong legal background on marriage and other legal protections for same-sex couples. Pizer co-authored California's broad domestic partnership law, which has become a model for other states, and frequently advises federal, state and local policymakers on LGBT issues. Prior to coming to the Williams Institute, Pizer served as National Marriage Project Director and Senior Counsel for Lambda Legal, the oldest and largest legal organization working for the civil rights of lesbians, gay men, bisexual and transgender people, and those with HIV/AIDS. She also was co-counsel in Golinski v. U.S. Office of Personnel Management, in which a federal court in California held DOMA unconstitutional in February 2012. That case will be argued before the Ninth Circuit U.S. Court of Appeals in early September.

On today's ruling, Pizer stated, "Today's decision concludes that the federal government must not discriminate among legally married couples based on their sexual orientation, and also must not discriminate against states that open marriage to same-sex couples. States always have had prime responsibility for setting the rules about family rights and obligations, and Congress overstepped its role when it passed DOMA sixteen years ago."

The American Foundation for Equal Rights

Boston, MA — Today, the United States Court of Appeals for the First Circuit found that Section 3 of the federal Defense of Marriage Act ( DOMA ) is unconstitutional. Passed by Congress in 1996, DOMA nullifies the marriages of gay and lesbian couples for all purposes of federal law.

"Today's momentous decision by the First Circuit Court of Appeals is yet another example of the clear pattern of consistent recognition among federal courts that marriage inequality—by any level of government—violates our nation's core constitutional principles," said AFER Executive Director Adam Umhoefer. "Whether it is California's Proposition 8 or the so-called Defense of Marriage Act, court after court has affirmed that marriage discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional."

READ THE FIRST CIRCUIT'S DECISION HERE: www.ca1.uscourts.gov/pdf.opinions/10-2204P-01A.pdf .