Defense of Marriage Act heads to US Supreme Court

DENISE LAVOIE

AP Legal Affairs Writer

BOSTON — A bat­tle over a fed­eral law that defines mar­riage as a union between a man and a woman appears headed for the Supreme Court after an appeals court ruled Thurs­day that deny­ing ben­e­fits to mar­ried gay cou­ples is unconstitutional.

In a unan­i­mous deci­sion, the three-judge panel of the 1st U.S. Cir­cuit Court of Appeals in Boston said the 1996 law deprives gay cou­ples of the rights and priv­i­leges granted to het­ero­sex­ual couples.

The court didn’t rule on the law’s more polit­i­cally com­bustible pro­vi­sion — that states with­out same-sex mar­riage can­not be forced to rec­og­nize gay unions per­formed in states where it’s legal. It also wasn’t asked to address whether gay cou­ples have a con­sti­tu­tional right to marry.

The law was passed at a time when it appeared Hawaii would legal­ize gay mar­riage. Since then, many states have insti­tuted their own bans on gay mar­riage, while eight states have approved the prac­tice, led by Mass­a­chu­setts in 2004.

The court, the first fed­eral appeals panel to rule against the ben­e­fits sec­tion of the law, agreed with a lower court judge who in 2010 con­cluded that the law inter­feres with the right of a state to define mar­riage and denies mar­ried gay cou­ples fed­eral ben­e­fits given to het­ero­sex­ual mar­ried cou­ples, includ­ing the abil­ity to file joint tax returns. The rul­ing came in two law­suits, one filed by the Boston-based legal group Gay & Les­bian Advo­cates & Defend­ers (GLAD) and the other by state Attor­ney Gen­eral Martha Coakley.

“For me, it’s more just about hav­ing equal­ity and not hav­ing a sys­tem of first– and second-class mar­riages,” said plain­tiff Jonathan Knight, a finan­cial asso­ciate at Har­vard Med­ical School who mar­ried Mar­lin Nabors in 2006.

“I think we can do bet­ter, as a coun­try, than that,” said Knight, a plain­tiff in the GLAD lawsuit.

Knight said the Defense of Mar­riage Act costs the cou­ple an extra $1,000 a year because they can­not file a joint fed­eral tax return.

Oppo­nents of gay mar­riage blasted the decision.

“This rul­ing that a state can man­date to the fed­eral gov­ern­ment the def­i­n­i­tion of mar­riage for the sake of receiv­ing fed­eral ben­e­fits, we find really bizarre, rather arro­gant, if I may say so,” said Kris Mineau, pres­i­dent of the Mass­a­chu­setts Fam­ily Institute.

Since Con­gress passed the law, eight states have approved gay mar­riage, includ­ing Mass­a­chu­setts, Con­necti­cut, New York, Iowa, New Hamp­shire, Ver­mont, Mary­land, Wash­ing­ton state and the Dis­trict of Colum­bia. Mary­land and Washington’s laws are not yet in effect and may be sub­ject to referendums.

Last year, Pres­i­dent Barack Obama announced that the Depart­ment of Jus­tice would no longer defend the con­sti­tu­tion­al­ity of the law. After that, House Speaker John Boehner con­vened the Bipar­ti­san Legal Advi­sory Group to defend it. The legal group argued the case before the appeals court.

White House spokesman Jay Car­ney said the appeals court rul­ing is “in con­cert with the president’s views.” Obama, who once opposed gay mar­riage, declared his unequiv­o­cal per­sonal sup­port on May 9.

Car­ney wouldn’t say whether the gov­ern­ment would actively seek to have the law over­turned if the case goes before the Supreme Court.

“I can’t pre­dict what the next steps will be in han­dling cases of this nature,” Car­ney said.

The 1st Cir­cuit said its rul­ing would not be enforced until the Supreme Court decides the case, mean­ing that same-sex mar­ried cou­ples will not be eli­gi­ble to receive the eco­nomic ben­e­fits denied by the law until the high court rules.

That’s because the rul­ing only applies to states within the cir­cuit — Mass­a­chu­setts, Rhode Island, Maine and New Hamp­shire — and Puerto Rico. Only the Supreme Court has the final say in decid­ing whether a law passed by Con­gress is unconstitutional.

Until Con­gress passed the law, “the power to define mar­riage had always been left to indi­vid­ual states, the appeals court said in its ruling.

“One virtue of fed­er­al­ism is that it per­mits this diver­sity of gov­er­nance based on local choice, but this applies as well to the states that have cho­sen to legal­ize same-sex mar­riage,” Judge Michael Boudin wrote for the court. “Under cur­rent Supreme Court author­ity, Con­gress’ denial of fed­eral ben­e­fits to same-sex cou­ples law­fully mar­ried in Mass­a­chu­setts has not been ade­quately sup­ported by any per­mis­si­ble fed­eral interest.”

Sev­eral times in its rul­ing, the appeals court noted that the case will prob­a­bly end up before the high court, at one point say­ing, “only the Supreme Court can finally decide this unique case.”

Carl Tobias, a con­sti­tu­tional law pro­fes­sor at the Uni­ver­sity of Rich­mond, said the court kept its rul­ing nar­row, declar­ing uncon­sti­tu­tional only the sec­tion of the law on fed­eral ben­e­fits. Although sup­port­ers and oppo­nents of gay mar­riage may depict the rul­ing as the begin­ning of the end of the law, he said, the Supreme Court is likely to limit its rul­ing to the ben­e­fits issue as well.

“I think lawyers could argue that the argu­ments are equally applic­a­ble to the other sec­tions of the law, but you have to stretch. You have to take those out of the con­text in which it’s being applied, and I don’t think the court will do that,” Tobias said.

Dur­ing argu­ments before the court last month, a lawyer for gay mar­ried cou­ples said the law amounted to “across-the-board dis­re­spect.” The cou­ples argued that the power to define and reg­u­late mar­riage had been left to the states for more than 200 years before Con­gress passed the law.

Paul Clement, a Wash­ing­ton, D.C., attor­ney who defended the law on behalf of the Bipar­ti­san Legal Advi­sory Group, argued that Con­gress had a ratio­nal basis for pass­ing the Defense of Mar­riage Act in 1996, when oppo­nents wor­ried that states would be forced to rec­og­nize gay mar­riages per­formed elsewhere.

The group said Con­gress wanted to pre­serve a tra­di­tional and uni­form def­i­n­i­tion of mar­riage and has the power to define terms used to fed­eral statutes to dis­trib­ute fed­eral benefits.

“But we have always been clear we expect this mat­ter ulti­mately to be decided by the Supreme Court, and that has not changed,” he said in a statement.

Two of the three judges who decided the case Thurs­day were Repub­li­can appointees, while the other was a Demo­c­ra­tic appointee. Boudin was appointed by Pres­i­dent George H.W. Bush. Judge Juan Tor­ruella was appointed by Pres­i­dent Ronald Rea­gan. Chief Judge San­dra Lynch is an appointee of Pres­i­dent Bill Clinton.

In Cal­i­for­nia, two fed­eral judges have found this year that the law vio­lates the due-process rights of legally mar­ried same-sex couples.

In the most recent case, a judge found the law uncon­sti­tu­tional because it denies long-term health insur­ance ben­e­fits to legal spouses of state employ­ees and retirees. The judge also said a sec­tion of the fed­eral tax code that makes the domes­tic part­ners of state work­ers inel­i­gi­ble for long-term care insur­ance vio­lates the civil rights of peo­ple in gay and les­bian relationships.

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Asso­ci­ated Press writ­ers Jay Lind­say and Shan­non Young con­tributed to this report.

Posted by AP News on May 31 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.