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Thursday, January 13, 2011

DOJ Files DOMA Defense in First Circuit Cases

By Chris Geidner -
Today, the Department of Justice filed its defense of the Defense of Marriage Act in the U.S. Court of Appeals for the First Circuit in a single filing for both Gill v. Office of Personnel Management and Massachusetts v. United States. This past July, U.S. District Court Judge Joseph Tauro ruled that Section Three of DOMA -- which sets a federal definition for "marriage" and spouse" -- is unconstitutional.

The government announced in October 2010 that it planned to appeal the rulings.

In its defense of the 1996 law, the government today stated:

DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states.
When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society. That recognition has prompted ongoing dialogue and change in many states, with some states opting to authorize same-sex marriages and other states opting for other forms of legal recognition for same-sex couples, such as civil unions and domestic partnerships. Still other states have reexamined their legal systems and reaffirmed their support of their preexisting concept of marriage and provided that their constitution or laws authorize only marriages between a man and a woman. In the end, the large majority of states today do not recognize same-sex marriage.

Despite that "ongoing dialogue," the government asserts three reasons to justify DOMA's continued validity:

1.    Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.
2.    Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.
3.    Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

Although each is slightly different, these three "rationales" do read like different shades of the same argument, which is more or less that DOMA made sense -- or, is rational -- because the states hadn't reached a uniform decision.

In addition, the government argues that -- contrary to the trial court decision in the Massachusetts case -- DOMA does not violate either the Spending Clause or the Tenth Amendment to the Constitution.
More to come ...

Read the government's DOMA brief in Gill and Massachusetts: Document.pdf


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