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October 28, 2011

GLAD Defends its Win in Gill Case and Attacks BLAG’s Justifications for DOMA

GLAD has filed another vigorous attack on the constitutionality of the federal “Defense of Marriage Act” (DOMA).  In a legal brief submitted to the First Circuit Court of Appeals in Boston, GLAD defended an earlier District Court ruling finding DOMA unconstitutional.  GLAD’s brief counters the appeal brief seeking to justify DOMA by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which is now defending the law.

This challenge, known as Gill v. Office of Personnel Management, was the first strategic case in the nation to be filed against DOMA.  In July 2010, GLAD won the first-ever ruling at the district court level that the Defense of Marriage Act (DOMA) is unconstitutional, and GLAD’s case is the first to reach a federal appellate court.

Mary L. Bonauto, Civil Rights Project Director for GLAD said, “BLAG doesn’t seem to understand that our plaintiffs are already married.  They keep arguing against the right to marry and raising issues about why same-sex couples should be denied government marriage licenses. But the federal government doesn’t issue marriage licenses; states do, and Massachusetts did.  As a result, BLAG fails to justify why the Congress singled out one group of married people and denied them alone the same federal rights and responsibilities available to all other married people.”

In its brief, GLAD argues:

  • DOMA reflects prejudice rather than good public policy, and therefore should be considered under heightened scrutiny standards.  It is undisputed that gay men and lesbians have been subject to discrimination historically and yet participate fully in and contribute to society – the two key factors courts look to in making a decision about applying heightened scrutiny.  This case also marks the first time that the Department of Justice has made this same argument in a United States Court of Appeals.
  • Same-sex couples are now lawfully married in Massachusetts.  None of the justifications advanced by Congress in 1996, or those invented by BLAG in litigation, support the double standard for federal recognition of marriages imposed by DOMA.

The brief itself can be read here.

“When all is said and done, everyone knows what was going on in 1996. Some members of Congress were openly hostile to gay people and same-sex relationships,” said Bonauto. “The official House Report admits DOMA’s purpose was to express ‘moral disapproval of homosexuality.’ Others reacted instinctively against people who seemed different and an issue that seemed unfamiliar. Since there are no policy justifications that make any sense, all that remains is dislike and discomfort. That’s why DOMA fails – dislike and discomfort are not neutral policy reasons for singling out same-sex married couples for blatantly disadvantageous treatment.”

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