- The Washington Times - Thursday, May 31, 2012

A Boston federal appellate court ruled Thursday that the federal law defining marriage as between a man and a woman is unconstitutional, handing gay-marriage proponents their biggest judicial victory to date and driving the issue closer to a Supreme Court showdown.

The three-judge 1st U.S. Circuit Court of Appeals panel, including two judges appointed by Republicans, stopped short of ruling that any federal ban on same-sex marriage is unconstitutional. Instead, the judges held that the 1996 Defense of Marriage Act (DOMA) places an unfair burden on married same-sex couples by denying them equal access to federal benefits and goes beyond the powers of the federal government.

Marriage law is set by states, not the federal government, and “no precedent exists for DOMA’s sweeping general ‘federal’ definition of marriage for all federal statutes and programs,” wrote Judge Michael Boudin.

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President Obama recently announced that he had “evolved” to a personal position supporting same-sex marriage, although he stopped short of embracing a constitutional right to gay unions. Congressional Republicans have had to fund their own legal defense of DOMA after Mr. Obama’s Justice Department announced it no longer would defend the law in court.

The Boston court, which upheld a decision by U.S. District Judge Joseph L. Tauro, said it found no “permissible federal interest” to enforce DOMA. But it stayed its decision overturning DOMA, noting that “only the Supreme Court can finally decide this unique case.”

Mr. Obama has said the federal law’s Section 3 is unconstitutional and the Department of Justice has declined to defend it. However, the White House has no plans to pursue a formal repeal of DOMA in Congress, presidential spokesman Jay Carney said Thursday.

The same-sex plaintiffs and their attorneys were elated by the court’s ruling.

“How thrilling this is for us to know that the courts believe in protecting our rights to Social Security benefits, as with all the other married couples in the country,” said Bette Jo Green, who with wife Jo Ann Whitehead are among the seven married couples and three gay widowers who are seeking a repeal of the law in the case of Gill v. Office of Personnel Management.

“We are very happy with this result. I think it is what we have worked a lot of years for and believe it is the correct decision,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders (GLAD).

But Dale Schowengerdt, an attorney for Alliance Defense Fund, one of dozens of groups defending DOMA, said that in “allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far.”

“The federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition as well,” Mr. Schowengerdt said. DOMA protects marriage “and we trust the U.S. Supreme Court will reverse the 1st Circuit’s erroneous decision.”

“This ruling that a state can mandate to the federal government the definition of marriage for the sake of receiving federal benefits, we find really bizarre, rather arrogant, if I may say so,” said Kris Mineau, president of the Massachusetts Family Institute, told the Associated Press.

The disputed provision of the law says that, for federal purposes, the terms “marriage” and “spouse” refer to a legal union with one husband and one wife. Another section of DOMA, which holds that states do not have to recognize gay unions approved in other states, is not part of the lawsuit.

GLAD attorney Mary Bonauto argued that the federal government generally respects the marriage laws of the states, but with DOMA, same-sex couples are singled out for sweeping discrimination by the government. “So what we really have here is a classic double-standard,” she said.

Thursday’s ruling also applied to a companion case, Massachusetts v. United States, led by Massachusetts Attorney General Martha Coakley, a Democrat.

The federal marriage legislation, signed by President Clinton, is defended by a team of lawyers led by former U.S. Solicitor General Paul D. Clement on behalf of the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives. A request for comment from Mr. Clement at Bancroft PLLC was not immediately returned, but he said in a statement that he fully expected the final issue to be decided at the Supreme Court.

“The writing is on the wall for DOMA,” said Joe Solmonese, president of the Human Rights Campaign, the nation’s largest organization for gay, lesbian, bisexual and transgender equal rights.

“The federal government shouldn’t be in the business of picking and choosing which marriages it likes and which it doesn’t, but that’s the effect of this unjust law,” he said.

Thursday’s ruling is the latest in a string of victories in efforts to overturn the federal marriage law.

On May 24, U.S. District Judge Claudia Wilken in San Francisco ruled that DOMA “violates equal protection rights” and that state employee Michael Dragovich and other same-sex partners are being illegally denied access to California’s insurance program for long-term care.

The California Public Employees’ Retirement System argued that it refused to give benefits to same-sex couples because of DOMA and Internal Revenue Service rules.

Judge Wilken’s ruling is similar to a February decision by U.S. District Judge Jeffrey White, who also serves the Northern California district, that said DOMA is illegally blocking Karen Golinski from adding her legal wife to her state health care benefits plan.

BLAG has appealed the Golinski ruling. That case will be heard in September by the 9th U.S. Circuit Court of Appeals. Judge Wilken stayed her ruling, pending appeal by BLAG.

Susan Crabtree contributed to this report.

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