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Religious Tolerance logo

Attempts to have the federal "Defense of
marriage act" (DOMA) ruled unconstitutional

Comments about the Obama Administration decision
to stop fighting DOMA constitutional challenges in court
"Gill" case appealed to the 1st Federal Court of Appeals.

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This story is a continuation of the previous essay

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2011-FEB: A positive "Tipping Point" reaction on the DOJ decision by a major pro-equality LGBT group:

According to Jon Davidson of Lambda Legal, a tipping point was created when the Obama Administration decided that they would longer defend the constitutionality of the Defense of Marriage Act (DOMA). He wrote:

"When future generations look back on Wednesday, February 23, 2011, there can be little doubt that they will see it as such a tipping point in the quest for equality for lesbian, gay, and bisexual people. We still have far to go, but that day is a sure sign that it is only a matter of 'when,' not 'whether,' the promise of equality under the law will be fulfilled, regardless of one’s sexual orientation."

"What hit the most headlines, of course, was the statement of the Department of Justice that it will no longer be defending the so-called Defense of Marriage Act because it has concluded that that law is unconstitutional. What was an even bigger development, however, was the conclusion of the president, the U.S. attorney general, and the Department of Justice that all laws that discriminate based on sexual orientation should be presumed to be unconstitutional.

"With the reasoned analysis we should expect from a president who once taught constitutional law and an attorney general who was once a judge, they have concluded that courts should treat anti-gay laws with suspicion, based on the nation’s long history of discrimination based on sexual orientation, gay people’s relative lack of political power, and the unfairness of discriminating based on such a core characteristic that is unrelated to the ability to perform or contribute to society. As a result, as the attorney general has explained, courts should give 'heightened scrutiny' to laws that treat lesbians, gay men, and bisexuals unequally [to heterosexuals]. Under that test, he has continued, courts should strike down anti-gay laws as unconstitutional unless the government can prove both that those laws' unequal treatment of gay people is at least substantially related to the advancement of an important government objective and that advancing that objective was the actual reason for the law, not some hypothetical or after-the-fact rationalization."

"This is an about-face from arguments made by the executive branch for decades that laws that treat gay people unequally should be presumed to be constitutional and should be upheld if any conceivable argument might be made that they further a legitimate state interest, regardless of whether that was the reason for a particular law’s enactment or not." 1

In response to prediction by Davidson and other LGBT commentators of a "tipping point," we created a new section to this web site to monitor developments towards in LGBT equality. It seems that their predictions were accurate; a "tipping point" has materialized. Acceptance of the LGBT community and movement towards equality appears to be accelerating.

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The Bipartisan Legal Advisory Group (BLAG) appeals two DOMA-related cases to the 1st U.S. Court of Appeals:

  • Review:

    During 2010-JUL, U.S. District Court Judge Joseph Tauro in Boston, MA. found for the plaintiffs in two similar lawsuits:

    • Nancy Gill et al. v. Office of Personnel Management et al.

    • The Commonwealth of Massachusetts v. U.S. Department of Health and Human Services.

    Judge Tauro ruled that the federal Defense of Marriage Act (DOMA) is in violation of four separate clauses of the U.S. Constitution and is thus unconstitutional. Following the rules of the federal court, he stayed the decisions for two weeks to allow for an appeal.

  • 2010-OCT: The Department of Justice appealed the cases to the United States Court of Appeals for the First Circuit. 2 This is a routine action whenever a federal law is found to be unconstitutional.

  • 2011-FEB. The Obama Administration including the federal Department of Justice, decided to continue following the DOMA law as it is required to. It has enforcing DOMA's discriminatory regulations against legally married same-sex couples. It no longer considers them for over 1,100 benefits automatically granted to legally married opposite-sex couples. However, the Administration has also decided to refuse to defend the constitutionality of DOMA in courts on the grounds that it was clearly in violation of the U.S. Constitution.

In response, Republicans convened the House of Representatives' Bipartisan Legal Advisory Group (BLAG) to defend DOMA. The three Republicans on the five-person group unanimously decided to hire an outside attorney to replace the role of the Department of Justice in defending DOMA during legal challenges to the law's constitutionality. Thus, it was up to BLAG to appeal these two cases -- and other similar attacks on DOMA's constitutionality. 2

  • 2011-NOV: 133 House Democrats filed an amicus curia ("friend of the court") informational brief in support of the plaintiffs of Gill and Massachusetts. Among these Congresspersons were 14 long-standing representatives who had voted in favor of the bill in 1996 before it became law; they realize now that they were wrong.

    Seventy major American employers also filed an amicus brief in support of the plaintiffs. 2

  • 2012-APR-04: Since the Gill and Massachusetts cases are so similar, oral arguments were heard together by the appeal court.

    Lawyers opposing the constitutionality of DOMA included:
    • Mary Bonauto of the Gay & Lesbian Advocates & Defenders (GLAD), a leading LGBT legal defense group;
    • Stuart Delery, chief of the Civil Division of the Department of Justice; and
    • Maura Healey, section chief of the Civil Rights section of the Massachusetts Attorney General's Office.

The extremely difficult task of supporting the constitutionality of DOMA fell on Paul Clement of Bancroft PLLC, who was hired for the assignment by BLAG.

  • 2012-MAY-31: A three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously affirmed Judge Tauro's 2010 decision. i.e. that Section 3 of DOMA, which denies federal benefits to legally married same-sex couples, is unconstitutional. The constitutionality of the rest of DOMA was not addressed by Judge Tauro or by the Appeals Court. This is the first time a federal appellate court has found part of DOMA to be unconstitutional.

    The court's decision was stayed pending an expected appeal to the U.S. Supreme Court.

    Metro Weekly reports:

    "Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: '[M]any 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'." 3

The full text of the court's ruling is available online. 4

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jon Davidson, "Marriage Equality's Tipping Point," the Advocate magazine, 2011-FEB-24, at:
  2. "Defense of Marriage Act," Wikipedia, as on 2012-JUN-02, at:
  3. Chris Geidner, "DOMA's Federal Definition of Marriage Unconstitutional, Federal Appeals Court Rules," 2012-MAY-31, at:
  4. Text of ruling: in "Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, et al. ...," United States Court of Appeals for the First Circuit, 2012-MAY-31, at:

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconst. > Gill > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconst. > Gill > here

Copyright © 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2012-JUN-01
Latest update: 2012-NOV-24
Author: B.A. Robinson

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