Appeals court hears case for gay marriage

Equal protection under the law cited for striking down federal ban

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A three-judge federal appellate court heard arguments Wednesday on whether a 1996 federal law that defines marriage as the union of one man and one woman - thus denies marital benefits to gay couples married under state law - is constitutional.

The Defense of Marriage Act (DOMA) amounts to “across-the-board disrespect” of gay couples who were married under Massachusetts law, Mary L. Bonauto, lead attorney for the 17 gay plaintiffs, told the 1st U.S. Circuit Court of Appeals in Boston.

“The promise of equal protection is that likes are to be treated alike,” said Ms. Bonauto, who directs the civil rights project at Gay and Lesbian Advocates and Defenders.

“But DOMA treats married same-sex couples differently from all other married persons, making gay people and our marriages unequal to all others,” she said.

The case, Gill et. al., v. Office of Personnel Management, is a consolidation of three similar cases, and is named for postal worker Nancy Gill. It argues that DOMA illegally prevents gay spouses from accessing federal marital benefits that are available to heterosexual spouses. These include Social Security survivor benefits, eligibility to be on a spouse’s federal health insurance plan, and the ability to file federal taxes as a married couple.

One of the plaintiffs is Dean Hara, who married former Rep. Gerry Studds, Massachusetts Democrat. Mr. Studds, the first openly gay member of Congress, died in 2006, and Mr. Hara is denied the pension given to surviving spouses of former members of Congress.

Former Solicitor General Paul Clement defended DOMA on behalf of the Bipartisan Legal Advisory Group of the House of Representatives.

Mr. Clement, who recently argued against the Obama administration’s health care law in front of the U.S. Supreme Court, told the appellate court Wednesday that Congress had rational reasons to enact DOMA and preserve the historical definition of marriage in federal statutes and programs.

In 1996, Hawaii appeared ready to legalize gay marriage - a move that would have affected other states and the federal government, Mr. Clement said.

States can enact their own definitions of marriage, but Congress has the constitutional right to define marriage for federal purposes, he said, adding that changes to a national definition of marriage should be done through the electoral process.

In 2010, U.S. District Court Judge Joseph Tauro ruled in favor of the Gill plaintiffs, saying that DOMA violated their constitutional guarantees of equal protection and “encroached” on states’ rights to define marriage.

Wednesday’s oral arguments marked the first time a DOMA case reached a federal appellate court.

In 2011, President Obama and the Department of Justice announced they would not defend DOMA because they believed it to be unconstitutional.

The appellate panel that heard the oral arguments were Chief Judge Sandra Lynch, Judge Michael Boudin, and Judge Juan Torruella.

• This article is based in part on wire service reports.

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