Gay group calls on U.S. Supreme Court to strike down DOMA

GLAD’s Mary Bonauto (center) poses for a photo with Gill plaintiffs.

GLAD’s Mary Bonauto (center) poses for a photo with Gill plaintiffs. Chris Johnson, Washington Blade

The New England-based LGBT group responsible for the most successful lawsuit to date targeting the Defense of Marriage Act on Thursday filed a formal request asking the U.S. Supreme Court to strike down the anti-gay law.

The filing from Gay & Lesbian Advocates & Defenders responds to petitions from the House Republican-led Bipartisan Legal Advisory Group and the U.S. Justice Department calling on the Supreme Court to take up the lawsuit — the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services.

Chris Johnson, Washington Blade

GLAD’s Mary Bonauto (center) poses for a photo with Gill plaintiffs.

In a historic decision on May 31, the U.S. First Circuit Court of Appeals overturned Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, as a result of this litigation.

BLAG, which is defending DOMA under the direction of House Speaker John Boehner, had filed a request with the Supreme Court in June asking justices to overturn the ruling and uphold the constitutionality of the anti-gay law.

In the 39-page brief filed Thursday, GLAD’s lawyers say they agree that “the arguments for a grant of review in this case are strong.” The plaintiffs also present the same question for the Supreme Court to answer as other petitions: does Section 3 of DOMA violate the equal protection guarantee of the Fifth Amendment to the U.S. Constitution for legally married same-sex couples?

But GLAD and BLAG have wildly different conclusions on what the Supreme Court should determine with regard to this question. In its filing, GLAD says the court shouldn’t “be persuaded by the distorted analysis” put forward by BLAG, and, instead, affirm the First Circuit’s ruling.

“The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition,” GLAD writes, “[A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”

GLAD notes BLAG devotes much of its petition to contending the First Circuit was “inventing” a new standard of review in its decision to overturn DOMA. Disputing this argument, GLAD says BLAG “does not accurately characterize the First Circuit’s holding or analysis” and the First Circuit had correctly applied rational basis holdings from earlier cases.

GLAD lays out several reasons why the First Circuit ruled that DOMA is unconstitutional, saying Congress could only have passed DOMA out of animus toward gay people.

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