At points in today's appellate arguments over the constitutionality of the federal definition of marriage contained in the Defense of Marriage Act, the four lawyers arguing the two cases to three judges appeared to be operating from different worlds. One of the only points of complete agreement was that DOMA was an unprecedented attempt by Congress to define marriage across all federal laws.
Whether arguing over the rationales advanced for DOMA's passage, the level of scrutiny from which courts should review laws that classify people based on sexual orientation, or the impact of Section 3 of DOMA on married gay and lesbian couples, the gulf between the lawyers at times prevented the sort of fireworks one might expect at a debate over a hot-button issue like "gay marriage," as it was called when DOMA was passed in 1996.
In a somewhat surprising move, the Department of Justice went a step further than it has in the past when Acting Assistant Attorney General Stuart Delery told the U.S. Court of Appeals for the First Circuit today that DOJ would not be defending the constitutionality of the 1996 law regardless of the level of scrutiny the court found appropriate for reviewing a law like DOMA that classifies people based on sexual orientation.
Delery, representing the federal defendants in the two cases, Gill v. Office of Personnel Management and Massachusetts v. United States, was in the unusual position of agreeing with the plaintiffs on most points because of President Obama's February 2011 decision that Section 3 of DOMA is unconstitutional because such laws should be subjected to heightened scrutiny and that, accordingly, DOJ would stop defending DOMA in court.
The head of Department of Justice's Civil Division, Delery told Chief Judge Sandra Lynch and Judges Juan Torruella and Michael Boudin today that Congress's intent to single out gay and lesbian couples for discrimination was clear from the name of the bill itself: "It's a defense against something, and that defense was [against] same-sex couples."
As to the DOJ's prior position that DOMA should be found constitutional if subjected to the lowest level of scrutiny -- known as rational basis -- Delery noted that DOJ's prior briefs defending the law were superseded by its more recent filings and, hence, no longer the government's position. Specifically asked by Judge Boudin whether the law should be upheld under rational basis review, Delery said, "I'm not here to defend it on any basis."
When Paul Clement, representing the House Republican leadership-controlled Bipartisan Legal Advisory Group, made his case defending DOMA, he pointed to the "uniqueness of the dynamic that Congress was facing in 1996? -- when Hawaii courts were considering whether same-sex couples were required to be allowed to marry under Hawaii law. Clement argued that Congress had a rational basis to act to "preserve its prior legislative judgments" by, in anticipation of a change in Hawaii law, preventing any federal recognition of same-sex marriage.
Clement also argued that, in accepting states' marriages for federal purposes prior to DOMA, there was both "uniformity" in the provision of federal benefits and "deference" to states' decisions about marriage -- but that the pending Hawaii decision at the time justified the congressional action in deciding to choose uniformity over deference.
Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, representing the plaintiffs who brought the Gill lawsuit arguing that DOMA Section 3?s federal definition of marriage violates constitutional equal protection guarantees, disagreed, telling the court, "The one constant of marriage law has been change."
Noting that even as states across the country disagreed in the past on whether interracial marriages should be recognized, "the federal government never weighed in for or against."
Bonauto went on to discuss how Clement's argument about uniformity didn't make sense to GLAD, stating, "Of course there's uniformity, but what is the reason for singling out one group? That's the question BLAG does not answer."