Part 1 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court
April 4, 2012
By Scottie Thomaston
For an overview of the trial and what was at stake today, click here for a preview piece
The First Circuit has just wrapped up its oral arguments in Gill v. OPM/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 we noted yesterday, P8TT 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. We will keep checking back for updates and to see if the issue was resolved.
I’ll split the arguments up into separate posts. First up is the DOJ.
Acting Assistant Attorney General Stuart Delery’s argument
Arguing for the Justice Department, Acting Assistant Attorney General Stuart Delery of the Civil Division of the DOJ says 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. The DOJ of course decided back in February of last year that laws targeted at gays and lesbians should be reviewed under heightened scrutiny. Delery was questioned by a judge about what should happen under rational basis review, and he informed the judge that the DOJ takes no position on that question.
Delery goes through the listed justifications for the Defense of Marriage Act, first discussing ‘traditional notions of morality.’ He points out that at least since Lawrence v. Texas, traditional notions of morality can’t be used by themselves to justify laws. Making the point that the law is based on animus for gays and lesbians – another prohibited basis for lawmaking – he quotes Romer v. Evans and US Dept. of Agriculture v. Moreno‘s proposition that a “bare… desire to harm a politically unpopular group” is not a legitimate state interest for a law to be sustained under rational basis review, let alone something that would pass a more heightened form of scrutiny.
Delery then discusses 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 tells 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. He points to studies that show children raised by same-sex parents are just as likely to be happy and successful as those raised by opposite-sex parents.
Aside from that, he tells the panel of judges, same-sex couples who are married are disallowed government benefits because of the Defense of Marriage Act but there are no attempts made by the government to assure married opposite-sex couples will procreate before they gain access to their benefits. Married opposite-sex couples are entitled to government recognition of their relationships whether or not they meet that particular burden.
If that isn’t enough, Delery then makes 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.
Moving on to the Tenth Amendment claims brought in the case – that the Defense of Marriage Act hurts states’ interests in determining their own marriage laws, something that has traditionally been the states’ concern – Delery tells the panel that the Government’s position is that the Tenth Amendment doesn’t provide an independent basis to strike down the law, nor does the Spending Clause of the US Constitution. The DOJ says the law violates the Equal Protection Clause and equal protection principles in general. The DOJ disagrees that DOMA intrudes on states’ authority regarding marriage, instead offering that what DOMA actually does is defines the scope of federal programs in providing certain benefits to married couples.
As expected, the First Circuit case Cook v. Gates made its appearance in questions from the panel. Judges in that case declined to apply any form of heightened scrutiny for several reasons: it wasn’t clear that Romer or Lawrence indicated that anything but the lowest form of scrutiny, rational basis, should apply. Also, Cook was a military case involving Don’t Ask, Don’t Tell, and courts generally give a lot of deference to the military in those cases. Asked why Cook should not determine the type of scrutiny the First Circuit will apply in its decision in Gill, Delery first points to Cleburne v. Cleburne Living Center, a case which raised the possibility of some form of enhanced rational basis scrutiny rather than a more easily passable test. Delery mentions, 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, decided in 1986, was relied upon in the 1990s to deny heightened scrutiny to laws affecting gays and lesbians, but that case was overruled in 2003 in Lawrence v. Texas, so it’s no longer applicable. Delery closes by acknowledging that the Supreme Court has yet to confront whether gays and lesbians can be considered a suspect class.