<B><I>Online Extra:</b></i> <b>First Circuit Strikes DOMA on Equal Protection Grounds</b>

Section 3 of DOMA, enacted by Congress in 1996, states that only marriage between a man and a woman will be recognized for federal purposes.

Gay & Lesbian Advocates & Defenders (GLAD) filed a lawsuit in March 2009 on behalf of 17 same-sex couples, and widows and widowers of same-sex marriages, charging that Section 3 violated the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and the issuance of passports. The passport issue was resolved in 2009, when the State Department changed its policy. The plaintiffs were legally married under Massachusetts law. The state of Massachusetts filed a separate challenge to the law (Massachusetts v. OPM). A federal district court ruled in favor of the challengers.

Mary Bonauto, GLAD's civil rights project director who litigated the case, said it is theoretically possible that the government and the House Bipartisan Legal Advisory Group (which intervened to defend the law) could seek review of the panel decision by the full appellate court. But, she explained, that would not be warranted because the circuit is a six-member court and, even if the three judges who were not on the panel disagreed with the panel decision, the result would not change.

The panel, she noted, has imposed a stay on its decision, 'so nothing will change, and they anticipate, correctly, there will be a petition for certiorari [to the Supreme Court] to take the case and decide whether the First Circuit was correct, which we believe it is.'

In its ruling, the panel noted that DOMA does not formally invalidate same-sex marriages in the states that permit them, 'but its adverse consequences for such a choice are considerable.' Some of those consequences include preventing same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, and preventing the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits. Also, federal employees are unable to share their health insurance and certain other medical benefits with same-sex spouses.

'DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws,' Boudin wrote. 'In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.'

The Department of Justice initially defended the constitutionality of Section 3 but changed its position last year, saying the section could not survive 'heightened scrutiny,' the standard of review that, it argued, should apply to discrimination against gays and lesbians. Shortly afterwards, the Republican leadership of the U.S. House intervened to defend DOMA under the 'rational basis' standard. Paul Clement of Bancroft argued the case for the leadership group. No representative of the House Republican leadership could be immediately reached for comment.

'Liberal federal judges in Massachusetts and California have resorted to making up legal standards in order to justify redefining marriage,' said Brian Brown, president of the National Organization for Marriage, in a statement. 'They realize the legal precedent doesn't allow them to redefine marriage, so they are making up new standards to justify imposing their values on the rest of the nation. It is clear that the U.S. Supreme Court is going to have to resolve this issue once and for all.'

The appellate panel rejected application of 'heightened scrutiny' as well as the least vigorous standard of review'rational basis'to Section 3. Instead, it applied a type of intense rational-basis review that, the panel said, has been used by the Supreme Court in certain equal protection cases.

'Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications,' Boudin wrote. 'And in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.'

The panel did not find 'special clarity' in the reasons that Congress offered to support Section 3. To Congress' claim that the law would save the government money, the panel pointed to recent analyses indicating the law actually would cost the government money. The law purports to support child-rearing in stable marriages, but the panel said DOMA cannot prevent legally married same-sex couples from adopting children or a female partner from giving birth to a child to be raised by both partners. And the Supreme Court in two decisions'Lawrence v. Texas and Romer v. Evans ' has undercut moral disapproval alone'a stated justification for DOMA ' as a basis for legislation.

'To conclude, 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,' Boudin wrote. '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.'

Setting the stage for a U.S. Supreme Court battle, a federal appellate court on May 31 held that the federal Defense of Marriage Act unconstitutionally denies federal benefits to same-sex couples who are legally married under state laws.

In Gill v. Office of Personnel Management, a three-judge panel of the U.S. Court of Appeals for the First Circuit in Boston held that the rationales offered to support Section 3 of DOMA were inadequate.

'Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point,' wrote Judge Michael Boudin, who was joined by Chief Judge Sandra Lynch and Judge Juan Torruella. 'If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.'

Section 3 of DOMA, enacted by Congress in 1996, states that only marriage between a man and a woman will be recognized for federal purposes.

Gay & Lesbian Advocates & Defenders (GLAD) filed a lawsuit in March 2009 on behalf of 17 same-sex couples, and widows and widowers of same-sex marriages, charging that Section 3 violated the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and the issuance of passports. The passport issue was resolved in 2009, when the State Department changed its policy. The plaintiffs were legally married under Massachusetts law. The state of Massachusetts filed a separate challenge to the law (Massachusetts v. OPM). A federal district court ruled in favor of the challengers.

Mary Bonauto, GLAD's civil rights project director who litigated the case, said it is theoretically possible that the government and the House Bipartisan Legal Advisory Group (which intervened to defend the law) could seek review of the panel decision by the full appellate court. But, she explained, that would not be warranted because the circuit is a six-member court and, even if the three judges who were not on the panel disagreed with the panel decision, the result would not change.

The panel, she noted, has imposed a stay on its decision, 'so nothing will change, and they anticipate, correctly, there will be a petition for certiorari [to the Supreme Court] to take the case and decide whether the First Circuit was correct, which we believe it is.'

In its ruling, the panel noted that DOMA does not formally invalidate same-sex marriages in the states that permit them, 'but its adverse consequences for such a choice are considerable.' Some of those consequences include preventing same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, and preventing the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits. Also, federal employees are unable to share their health insurance and certain other medical benefits with same-sex spouses.

'DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws,' Boudin wrote. 'In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.'

The Department of Justice initially defended the constitutionality of Section 3 but changed its position last year, saying the section could not survive 'heightened scrutiny,' the standard of review that, it argued, should apply to discrimination against gays and lesbians. Shortly afterwards, the Republican leadership of the U.S. House intervened to defend DOMA under the 'rational basis' standard. Paul Clement of Bancroft argued the case for the leadership group. No representative of the House Republican leadership could be immediately reached for comment.

'Liberal federal judges in Massachusetts and California have resorted to making up legal standards in order to justify redefining marriage,' said Brian Brown, president of the National Organization for Marriage, in a statement. 'They realize the legal precedent doesn't allow them to redefine marriage, so they are making up new standards to justify imposing their values on the rest of the nation. It is clear that the U.S. Supreme Court is going to have to resolve this issue once and for all.'

The appellate panel rejected application of 'heightened scrutiny' as well as the least vigorous standard of review'rational basis'to Section 3. Instead, it applied a type of intense rational-basis review that, the panel said, has been used by the Supreme Court in certain equal protection cases.

'Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications,' Boudin wrote. 'And in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.'

The panel did not find 'special clarity' in the reasons that Congress offered to support Section 3. To Congress' claim that the law would save the government money, the panel pointed to recent analyses indicating the law actually would cost the government money. The law purports to support child-rearing in stable marriages, but the panel said DOMA cannot prevent legally married same-sex couples from adopting children or a female partner from giving birth to a child to be raised by both partners. And the Supreme Court in two decisions'Lawrence v. Texas and Romer v. Evans ' has undercut moral disapproval alone'a stated justification for DOMA ' as a basis for legislation.

'To conclude, 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,' Boudin wrote. '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.'