DOMA's Federal Definition of Marriage Unconstitutional, Federal Appeals Court Rules

[znk666]

[quote]Section 3 of the Defense of Marriage Act -- the federal definition of "marriage" and "spouse" is unconstitutional, a federal appeals court in Boston ruled today. The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management and Massachusetts v. United States, is the first instance of a federal appellate court striking down any portion of the 1996 law.

Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court:

Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. 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. 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.

Writing that "Supreme Court review of DOMA is highly likely," the appeals court has stayed, or put on hold, the implementation of its decision pending any appeal.

Boudin was joined in the decision by Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, appointed by President Ronald Reagan.

White House press secretary Jay Carney said today of the decision, "There's no question that this is in concert with the president's views." He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.

Those oral arguments were held in the cases on April 4. Today's decision upholds U.S. District Court Judge Joseph Tauro's July 8, 2010, decision finding the federal definition of marriage to be unconstitutional.

In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: DOJ Civil Division Chief Stuart Delery, the person referenced by Carney, and Massachusetts Attorney General's Office Civil Rights section chief Maura Healey.

Because DOJ stopped defending Section 3 of DOMA in February 2011, the House Bipartisan Legal Advisory Group -- controlled 3-2 by Republicans -- voted to defend the law. Paul Clement, a lawyer for Bancroft PLLC, was hired to do so, and was the sole lawyer defending the law in Boston on April 4.

BLAG will now need to decide if it wishes to ask all of the judges of the First Circuit to review the decision en banc -- which Bonauto noted in a conference call today is unlikely due to the fact that the small size of the court, five active judges, makes reversal extremely unlikely -- or whether it immediately move to ask the U.S. Supreme Court to hear the case in a process called certiorari.

A second DOMA challenge, Golinski v. Office of Personnel Management, is on appeal before the U.S. Court of Appeals for the Ninth Circuit is scheduled for oral arguments in early September. It was struck down by Judge Jeffrey S. White earlier this year. A third DOMA decision, in Dragovich v. Department of Treasury, was issued on May 24, striking down Section 3 of DOMA as it impacts the ability of same-sex couples to participate in a California pension fund program.

Additionally, Servicemembers Legal Defense Network has a pending challenge, McLaughlin v. Panetta, and the Southern Poverty Law Center has its own challenge, Cooper-Harris v. United States, challenging DOMA's application to servicemembers and veterans' benefits. Both are still at the trial-court stage.[/quote]

[url]http://www.metroweekly.com/poliglot/2012/05/domas-federal-definition-of-marriage-unconstitutio.html[/url]