September 15, 2011

GLAD Files Forceful Replies to House in 2nd Circuit DOMA Case

Last night, Gay & Lesbian Advocates & Defenders (GLAD) responded to two August 15 filings by the U.S. House of Representatives, when the House both moved to dismiss the DOMA case Pedersen v. Office of Personnel Management and responded to GLAD’s motion for summary judgment.  Pedersen is the multi-plaintiff challenge to Section 3 of the Defense of Marriage Act (DOMA) pending in the federal district court for the District of Connecticut.

“The House seems confused about the central issue in Pedersen,” said Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead attorney in Pedersen. “They are defending a marriage case while we are representing same-sex couples who are already married and are being treated disgracefully by their government. The House’s briefs repackage the same slippery, insidious, anti-gay arguments that we have heard for years from our opponents. But there should be no mistaking the glaring double standard DOMA imposes in erasing the marriages of same-sex couples under federal law.”

GLAD’s two briefs (an opposition to the House’s motion to dismiss and a reply to the House’s brief on summary judgment) attack a number of the House’s arguments:

Animus:  “It is rare in equal protection cases that a legislative body touts so openly its desire to use legislation to condemn a disfavored minority as immoral.  Even in the absence of legislative materials evincing Congress’s bare desire to express condemnation of gay men and lesbians, DOMA is the kind of law that should invite judicial suspicion.”

Heightened scrutiny:  “The House effectively concedes that it cannot prevail if the discrimination at issue is subjected to anything more than minimal rational-basis scrutiny.  But heightened scrutiny is clearly required and, in any event, the proffered justifications are so weak and illogical and even application of rational-basis scrutiny cannot render DOMA section 3 constitutional.”

Child-rearing:  “The House’s brief is devoid of any explanation for how federal recognition of same-sex couples’ marriages would in any way discourage opposite-sex couples from marrying before procreating, much less provide any reputable social scientific evidence to support its notion that this extraordinary claim is even plausible.”

The briefs were accompanied by expert affidavits by Dr. Michael Lamb; Dr. Letitia Anne Peplau; and Dr. Lisa Diamond. Diamond’s affidavit responds to the House’s arguments on child-rearing.  Her research was erroneously cited by the House in its filings in both Pedersen and Windsor v. United States, a DOMA challenge filed by the American Civil Liberties Union. Lamb’s and Peplau’s rebuttal affadvits address the nature of sexual orientation.

GLAD is representing six married same-sex couples and one widower from the states of Connecticut, New Hampshire and Vermont in the Pedersen lawsuit. Co-operating counsel are Jenner & Block LLP (Washington, DC), Horton, Shields & Knox (Hartford), and Sullivan & Worcester LLP (Boston).

The next significant date in Pedersen is October 5, when the House is expected to submit its final brief. At that point, briefing will be complete and will be considered by Judge Vanessa L. Bryant, who was appointed to the federal bench in April 2007.

GLAD is litigating another DOMA challenge, Gill v. Office of Personnel Management, currently on appeal in the U.S. Court of Appeals for the First Circuit, on behalf of seven married same-sex couples and three widowers who reside in Massachusetts. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of DOMA is unconstitutional.

The U.S. House of Representatives is defending DOMA’s constitutionality in the appeal while the Department of Justice is now maintaining – in agreement with the plaintiffs – that DOMA is unconstitutional.  The next significant date in Gill is September 22, when the House and the Department of Justice will file their briefs.