The U.S. Department of Justice on Thursday told a federal appellate court that the Defense of Marriage Act does not violate the constitutional rights of same-sex married couples or their survivors and is a constitutional exercise of authority by Congress.
The department filed its opening brief in the U.S. Court of Appeals for the 1st Circuit in two cases from Massachusetts: Gill v. Office of Personnel Management and Massachusetts v. U.S. Dept. of Health and Human Services.
A federal district judge last July held that the federal law, known as DOMA, was unconstitutional because it violated the equal protection component of the due process clause, exceeded Congress’ authority under the spending clause, and violated the 10th Amendment because it imposed on an area of regulation historically left to the states.
The Gill case was brought by Gay & Lesbian Advocates & Defenders (GLAD) on behalf of seven same-sex couples married in Massachusetts and three survivors of same-sex spouses. The second case was brought by the Commonwealth of Massachusetts.
At the center of the appeal is Section 3 of the federal law that defines “marriage” and “spouse” for purposes of federal law. The section excludes relationships between two persons of the same sex, even if they are treated as a marriage under state law, and excludes the members of such a couple from the term “spouse” for the purposes of any federal law or program.
The Gill plaintiffs successfully argued that they had been denied certain benefits of federal programs and laws because of DOMA. Massachusetts argued that it might be required to repay benefits of certain federal funding programs because of DOMA and that the law has a negative tax code impact on the state as an employer.
In its brief, the Justice Department argued that DOMA is rationally related to legitimate governmental interests. It noted that the law was passed in 1996, a time when states were just beginning to address the issue of same-sex marriage.
“The Constitution permitted Congress to enact DOMA as a means to preserve the status quo, ensure consistency in the distribution of federal marriage-based benefits, and respect policy developments in the states without implicating other states or the United States, pending the resolution of the debate taking place in the states over whether to permit same-sex marriage,” said the brief, filed by Assistant Attorney General Tony West.
On Massachusetts’ 10th Amendment claim, the department argued, “Under Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and this Court’s precedent, the Tenth Amendment `is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power,’ United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997). As DOMA was a proper exercise of Congress’s Spending Clause authority, the statute does not violate the Tenth Amendment.”
The department also reiterated in a footnote what it had told the district court last year: the Obama Administration supports the repeal of DOMA. However, the department said it “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”
GLAD’s lead counsel Mary Bonauto said, ““We see nothing really new in this brief, which reiterates many of the same arguments the government made in the District Court. We’re prepared to meet these arguments head-on, and bring to an end the discrimination that is suffered by married same-sex couples like our plaintiffs and that DOJ has admitted is caused by DOMA.” GLAD’s response is due March 1.
The Justice department noted that five states – Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts–and the District of Columbia now allow same-sex couples to marry. In four other states – Maryland, New York, Rhode Island, and New Mexico – as a matter of law or of state government practice, same-sex marriages performed in other states have received recognition. In 2004, it added, the Government Accountability Office found that 1,138 federal laws were implicated by DOMA.