US Marriage Law Under Fire for Discrimination

Story first appeared in the Wall Street Journal.

The U.S. law that defines marriage as between a man and a woman went before a federal appeals court for the first time Wednesday, setting the stage for a battle over the constitutional rights of same-sex couples that could end at the Supreme Court.

The First Circuit Court of Appeals in Boston heard arguments from Boston Family Lawyers representing legally married gay couples and the state of Massachusetts, who claim that the Defense of Marriage Act violates equal-protection guarantees and interferes with the rights of states to make their own laws.

The 1996 law, widely known as DOMA, was defended in court by the Bipartisan Legal Advisory Group, set up last year by the House of Representatives after the current Presidential administration said it wouldn't support the law.

The three judges on the appellate panel alluded Wednesday to standards used by the Supreme Court to consider whether Congress had a legitimate reason to pass DOMA. Among those: whether a "rational basis" existed for the law.

The former U.S. Solicitor who was hired to defend the law by the Bipartisan Legal Advisory Group, argued that Congress had a "rational basis" to seek a uniform definition of marriage at a time when it appeared Hawaii would legalize gay marriage, which some feared would create a legal patchwork of definitions of marriage.

Congress has the power to define the terms it uses to distribute federal benefits. This is not in any way an effort to override the states' own definition" of marriage.

The civil rights project director of Gay and Lesbian Advocates and Defenders, argued on behalf of the married same-sex couples that the law deserved "heightened scrutiny" from the court because it affected a group that faces discrimination in society. But even without that, DOMA failed to pass the lower, "rational basis" standard, because it was enacted largely for discriminatory purposes.

There's no problem that's being solved by DOMA.  The law was simply Congress's way of expressing its disapproval of same-sex couples marrying.

The President said this week that courts should show deference to Congress. He later made it clear that he was mainly talking about a series of cases from the 1930s onward in which courts have given Congress wide leeway to regulate interstate commerce. In general, the current Presidential administration and earlier administrations make it a policy to defend acts of Congress in court, but the Attorney General said the DOMA case was a rare exception in which the administration didn't believe it could find a good basis to defend the law.

DOMA prevents the federal government from recognizing marriages from the six states and District of Columbia that perform same-sex unions, denying those married couples access to joint income-tax filings, Social Security benefits and access to family health insurance, among other benefits.

Wednesday's hearing combined two lawsuits, one by married same-sex couples and widows seeking federal benefits and another by the state of Massachusetts claiming Congress overstepped its authority in passing DOMA because recognizing marriage is a state concern.

In 2010, a U.S. District Judge agreed with both those arguments, striking down a provision of the law, known as Section 3, that defines marriage as the union of a man and a woman for the purposes of federal law.  He didn't strike down the law's other provision, which says states aren't compelled to recognize same-sex unions performed elsewhere.

DOMA is under legal attack on multiple fronts. On Monday, five legally married New York same-sex couples sue in federal court, claiming DOMA had an unfair impact on couples in which one spouse is an immigrant who wants to gain legal residence.

In February, a district court judge in San Francisco found DOMA unconstitutional because it denied health benefits to the spouse of a federal employee in California who married her same-sex spouse in 2008.

Court watchers said none of the judges are known for strong stances on these issues, and there is no timetable for when they will issue a ruling.

If the First Circuit strikes down DOMA, it makes it more likely that the Supreme Court at some point will want to review all of this.  The Supreme Court has not shown an interest in according special status to gays and lesbians, even when they struck down an anti-sodomy law. But even if they didn't do that in this case, they could still strike down DOMA using the lesser, rational basis test.

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