Obama DOJ To Defend DOMA In Court

Back in July, a Federal District Court in Boston ruled that Section 3 of Defense of Marriage Act (“DOMA”) — the section of the 1996 law which denies federal benefits to legally married same sex couples — is unconstitutional because it interferes with the traditional state right to define marriage and forces the state to “violate the equal protection rights of its citizens.” The decision was composed of two separate challenges, one brought by the state of Massachusetts and the other by Gay and Lesbian Advocates and Defenders (GLAD) “on behalf of eight married couples and three surviving spouses from Massachusetts” who have been denied federal benefits available to heterosexual married couples.

While the ruling represented a significant step forward for LGBT equality, some legal scholars raised concerns about the Judge’s interpretation of the 10th amendment, arguing that accepting such a broad interpretation of states’ rights could undermine future cases, particularly the government’s defense of the Affordable Care Act. Thus, it is of no particular surprise that the federal government filed a notice of appeal in both cases. From GLAD:

We fully expected an appeal and are more than ready to meet it head on,” said Mary L. Bonauto, GLAD’s Civil Rights Project Director. “DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits. We are confident in the strength of our case.”

The case is now before the United States Court of Appeals for the First Circuit. The next step will be for the government to file its brief to that court arguing that Judge Tauro’s ruling was wrong. GLAD will then file its brief in opposition to the government, and finally the government will file a reply brief. At that point, the appeal will be scheduled for oral argument. Briefing could be concluded by the spring of 2011 with oral argument to follow by the fall of 2011.

The Obama administration defended DOMA when both cases came before the U.S. District Court of Massachusetts, although some legal scholars have argued that it’s under no legal obligation to appeal the case further. “I think that it’s clear now that the president has the option of declining to defend laws that he believes are not constitutional,” Richard Socarides, a gay New York attorney and former adviser to President Clinton has said. “This law has now been declared unconstitutional, so he could agree with the federal district court … and choose not to defend it.”

Obama has pledged to fully repeal DOMA, although he has yet to press Congress to act on the issue. In 2009, Reps. Jerry Nadler (D-NY), Tammy Baldwin (D-WI), and Jared Polis (D-CO) introduced The Respect for Marriage Act of 2009, which would repeal the DOMA and allow the government to provide benefits to married gay couples.