Part 2 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court
April 4, 2012
By Scottie Thomaston
Continuing our analysis of oral arguments from Part 1 in the First Circuit DOMA case, the next lawyer up to the podium was Mary Bonauto from GLAD. Though she frames the law as failing even rational basis review, she says GLAD agrees with the Justice Department that heightened scrutiny should apply to laws affecting gays and lesbians. Suggesting that people in similar situations are “supposed to be treated alike” Bonauto tells the panel that the Defense of Marriage Act is an across-the-board denial of equal protection of the law to an entire class of people.
She says that Congress has always had a policy of neutrality regarding marriage laws and that by passing DOMA in 1996 it changed that history. She discusses the history of neutrality, specifically detailing issues like interracial marriage where there was never a question that the federal government would provide federal benefits to legally married couples in the states. The central issue presented by this case, she suggests, is “what federal interest is served by singling out only the marriages of same-sex couples” for across-the-board disrespect.
DOMA doesn’t have a rational basis – one can’t be “conjure[d] up” by offering Congress’ stated rationales – because its only purpose is to single out same-sex couples. Bonauto says DOMA 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 notes that the law affects same-sex couples who have children as much as it affects those without children. That doesn’t lead to the conclusion that it furthers the interests and stability of children and families.
One of the arguments used to justify the continued existence of DOMA is the claim that allowing recognition of same-sex marriage would affect the “public fisc” – the doling out of federal money and benefits associated with that money – in a negative and costly way. Bonauto takes that claim head-on, saying that, yes, it certainly saves money to deny benefits to couples, but why single out same sex couples for this treatment? She suggests that BLAG – representing House Republicans defending DOMA – offers no reason, leaving questions as to the rationality of this denial of benefits.
Another justification for the Act was the caution/”status quo” justification – that Congress wanted to preserve the status quo in 1996 while the nation grapples with the debate over whether to include same-sex couples in the institution of marriage. Bonauto says this is an unrealistic reason to defend the Act. 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.
She raised the point that implying that “caution” should be taken in the first place suggests there is a “problem” here that needed to be addressed. And she said there was no problem for DOMA to solve. She said that Congress essentially put a “no gays need apply” sign over the entire US 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. Comparing DOMA to Colorado’s Amendment 2 at issue in Romer v. Evans she points out that DOMA puts people in a class in order to take a broad range of rights away from them based only on animus for them as a class. Romer clearly prohibits this.
The federal government may disagree with a state’s decision to allow certain couples to marry, but she says their decision is a consequence of “dual federalism.” And despite the fact that Bowers v. Hardwick essentially invited legislators to express moral disapproval of gay and lesbian couples, the federal government enacted an “irrational, arbitrary” law designed to hurt gays and lesbians for no purpose and Judge Tauro’s decision should be affirmed as it struck down DOMA on Equal Protection grounds.