A panel of the U.S. Court of Appeals for the First Circuit heard oral arguments in a challenge to the federal Defense of Marriage Act in Boston this morning. The court’s website has a link to the last two-thirds of the argument (though I couldn’t get it to play for more than a few minutes). The busy and, to my mind, great attorney Paul Clement argued in favor of DOMA on behalf of the Bipartisan Legal Action Advisory Group of the U.S. House of Representatives. Attorneys for Gay and Lesbian Advocates and Defenders, the Massachusetts attorney general’s office and the U.S. Department of Justice argued against DOMA. There is a reasonably detailed description of the hearing here.
The part I could hear was the argument of the DOJ’s attorney. He is in an unenviable position since the DOJ had originally defended the law and then had a political about-face when the attorney general decided, in consultation with the president, that DOMA was actually unconstitutional and indefensible. In essence, they have to argue that although they had formally told the court DOMA was defensible, it really is not. Anyone inclined to believe the president is still deciding whether or not to support same-sex marriage should remember that his administration’s official position is that there are no rational reasons for retaining the definition of marriage as the union of a husband and wife.
Today’s case is actually two cases combined by the trial court and the furthest along in a series of legal challenges to DOMA (each of the major gay-rights litigation outfits seems to want to have their own case). It involves (1) Massachusetts’s implausible claim that the Constitution requires Congress to apply the marriage law enacted by the Massachusetts Supreme Judicial Court in determining the meaning of terms in federal law and (2) the claims of members of same-sex couples married in Massachusetts that the Constitution requires marriage benefits be extended to them. The trial court said defining marriage as the union of a man and a woman is so irrational it can only be explained by unconstitutional hatred (the DOJ’s attorney today engaged in some of this congressional mind-reading as well). Thus, if the First Circuit were to agree every state’s marriage definition would be likewise irrational and unconstitutional though each would presumably have to be litigated separately.
This case could actually be seen as a more cautious alternative to the Proposition 8 case but the result will be the same if the courts do not reject the expansive claims against either Proposition 8 or DOMA. It remains to be seen whether today’s panel will issue its decision before we get the final decision in the en banc petition in the Ninth Circuit and whether either case will be heard by the Supreme Court. If the en banc Ninth, the First Circuit panel, or the Supreme Court doesn’t turn back these lawsuits we can expect many, many more legal challenges to marriage laws in years to come.