[MsTinkerbelly]

DOMA trial: What to expect from tomorrow’s hearing in the First Circuit Court of Appeals
By Jacob Combs

Tomorrow morning, starting at 9:30 a.m. EDT, the First Circuit Court of Appeals in Boston will hear oral arguments in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services. It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth Amendments of the U.S. Constitution. Judge Tauro, a Nixon appointee, was the first district court judge in the country to strike down DOMA. A little over a month ago, another Republican-appointed judge, Jeffrey White of the Northern District of California, also declared DOMA unconstitutional.

It’s been a while since the original district court trial that Judge Tauro presided over, so we here at Prop8TrialTracker.com wanted to provide a brief review of the issues presented in the two cases and the legal analysis behind the judge’s decision. In Gill, filed by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs argued that DOMA violates the equal protection provisions of the Fifth Amendment by discriminating against gay and lesbian couples who are married under the laws of the state they live in but denied federal marriage benefits by the government. In the companion case of Massachusetts, Massachusetts Attorney General Martha Coakley claimed that Congress overstepped its authority and ran afoul of the Tenth Amendment in passing DOMA because the law undermined states’ abilities to recognize marriage equality.

Judge Tauro awarded summary judgment to the plaintiffs in both cases, striking down DOMA under the Fifth and Tenth Amendments. In his decision in Gill, Tauro rejected the arguments that DOMA encouraged responsible procreation or realized a governmental desire to ensure children were raised by their two biological parents and concluded instead that Congress passed DOMA because of moral disapproval of same-sex relationships and prejudice against gay people. In Massachusetts, Tauro affirmed that marriage has always been a province of state law in the United States, and ruled that DOMA constituted an unprecedented intrusion upon states’ rights by imposing a national definition of marriage. In his decisions, Judge Tauro declined to decide whether or not DOMA should be considered under heightened scrutiny, ruling that the statute failed even the more deferential rational basis scrutiny.

Because it is so significant, the issue of which level of scrutiny should apply to cases like the DOMA and Prop 8 trials deserves some explanation here. Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny. As Judge White wrote in his February ruling explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion.” In cases like these, the government must show that a classification is “substantially related to an important government objective.” If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest.”

As we wrote about here at Prop8TrialTracker.com, in February of 2011, the Department of Justice announced its determination that sexual orientation was a classification meriting heightened scrutiny review. In addition, it announced that is would cease to defend DOMA in court, and the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) took up the defense in its stead. Briefings were submitted in the fall. As it did recently in another DOMA case in the Ninth Circuit, the Department of Justice (along with the plaintiffs) filed a request for en banc review in the First Circuit as opposed to the slower route of proceeding to a 3-judge panel before en banc consideration. The reasoning behind this decision has to do with the scrutiny question. Because the 3-judge panels that first hear cases when they appealed are bound by a court’s earlier decisions, the panel appointed to hear Gill and Massachusetts would have to consider the First Circuit’s 2008 decision in Cook v. Gates, which determined that no Supreme Court ruling held that sexual orientation is a classification meriting heightened scrutiny. An en banc panel would not be bound by that determination, and could consider the question anew. Nevertheless, the petition for initial en banc hearing was denied.

In tomorrow’s hearing, you can expect to hear about the issue of scrutiny, and specifically Cook v. Gates, since the appeals panel will no doubt want to address the whether rational basis or heightened scrutiny applies. As mentioned above, Cook is a controlling precedent on this 3-judge panel, making it extremely unlikely the panel would opt for heightened scrutiny in considering Judge Tauro’s rulings. Because the Cook case concerned Don’t Ask, Don’t Tell, a law that affected the military, it is somewhat different from these DOMA cases, which affect civilians (and, it might be added, service members as well). Nonetheless, it seems almost certain that the First Circuit panel will follow Judge Tauro (and Cook) and use rational basis scrutiny in its determination of DOMA’s constitutionality.

The most unique portion of Judge Tauro’s 2010 ruling was his use of the Tenth Amendment, a darling of conservatives seeking to limit the scope of federal power. Tauro’s ruling in Massachusetts persuasively makes the case for striking down DOMA on Tenth Amendment grounds alone, even though the Fifth Amendment equal protection arguments of Gill are perhaps more traditional in cases like these. It will be intriguing to watch what questions the panel asks in terms of Judge Tauro’s two parallel tracks of analysis, and whether it finds one more convincing than the other.

Tomorrow’s meeting is also significant because of the lawyers who will be arguing for the various different parties. As we wrote before here at P8TT, the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision and one of the highest-ranking officials in the department. BLAG, on the other hand, will be represented by conservative legal wunderkind Paul Clement, former U.S. Solicitor General, who enjoyed the national spotlight this week because of his well-reviewed performance arguing against the constitutionality of the Affordable Care Act before the U.S. Supreme Court. In addition, Mary Bonauto, a prominent civil rights attorney whom the New York Times Magazine compared to former Supreme Court Justice Thurgood Marshall, will be arguing for GLAD. Bonauto is well-known for her successful arguments in Goodridge v. Department of Public Health, the 2003 Massachusetts Supreme Court decision that brought marriage equality to the Bay State. Maura Healy, the head of the Massachusetts Attorney General’s civil rights division, will represent the state of Massachusetts.

In terms of the panel itself, there appears to be little to be read from the proverbial tea leaves. The three judges making up the panel are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit. In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy. In an email to P8TT, Shannon Minter, Legal Director at the National Center for Lesbian Rights, wrote that none of the three judges can be easily classified as liberal or conservative.

Unfortunately, due to the ban on electronic devices of any kind in the courtroom tomorrow, P8TT will not be able to live blog the First Circuit hearing. If you live in Boston, you can try to attend the hearing in person when the courtroom opens at 9:00 a.m. (the courthouse itself will open at 7:30 a.m.). Feel free to send reactions and dispatches to prop8trial AT couragecampaign DOT org. Immediately after the hearing, audio of the oral arguments will be posted on the court’s website.

As always, Prop8TrialTracker.com will provide full coverage of tomorrow’s hearing. Check back throughout the day for updated news and analysis