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.

My colleagues Jerome Hunt and Jeff Krehely point out that, while the recent court ruling against Florida’s ban on gay adoption is a terrific step forward for equal rights, “several states still unfairly target gay men and lesbians who want to adopt or foster children“:

– 6 states expressly prohibit discrimination against gay and lesbian adoptions: California, Maryland, Massachusetts, Nevada, New Jersey, and New York.

– 3 states still restrict adoption by same-sex couples: Michigan, Mississippi, and Nebraska. The Michigan attorney general issued an opinion in 2004 that prevents same-sex couples married in other jurisdictions from adopting children in Michigan. Single gay and lesbian individuals, however, may petition to adopt. The director of Nebraska’s Department of Social Service issued a directive in 1995 that prohibits adoption by gay individuals and unmarried, cohabiting individuals. Mississippi, on the other hand, simply prohibits adoption by all same-sex couples.

– 3 states currently have laws or policies on their books that may effectively restrict adoption by gay men and women: North Dakota, Utah, and Arkansas. North Dakota allows social workers to make decisions about potential adoptive parents on the basis of their moral or religious convictions. Utah passed two provisions on adoptions in the last 10 years. The first, in 2000, prohibited unmarried cohabiting individuals from adopting. The second, in 2007, gave preference to married heterosexual couples over single adults in placement decisions. Finally, Arkansas prohibits unmarried, cohabitating individuals from adopting.

These policies come at an economic cost. The Florida ban kept 165 children in foster care, costing the state $2.5 million per year, the Williams Institute found and a nationwide ban on foster care by same-sex couples would cost somewhere between $87 million to $130 million a year. As Hunt and Krehely conclude, “During a time of state budget crunches it makes no sense to continue these discriminatory policies. Such laws and regulations are based on animus toward gay men and women, not on sound economic or social science. It’s time to erase them from the books.”

Moments ago, Judge Virginia Phillip — the California federal judge who ruled that Don’t Ask, Don’t Tell violated the due process clause of the Fifth Amendment and freedom of speech under the First Amendment — granted the Log Cabin Republican’s request for a broad injunction against further discharges:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

Earlier this month, the Justice Department filed an objection to the proposed injunction, insisting that the judge’s decision be limited to the plaintiffs in the suit. The government argued that a wide injunction would “foreclose the US from litigating the constitutionality” of DADT in other cases and frustrate the ongoing Pentagon review of the policy. The Justice Department will now have 60 days to make a decision on whether or not to appeal the case to the U.S. Ninth Circuit Court of Appeals.

In an opinion that accompanied the injunction, Phillips explains that the plaintiff (the Log Cabin Republicans) “has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has demonstrated the Don’t Ask, Don’t Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.”

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