The US Court of Appeals for the First Circuit [official website] heard arguments [hearing materials] on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive] Wednesday, in the first appellate hearing on the law. Although the US Department of Justice (DOJ) [official website] filed its initial brief in the case in January 2011, it announced a month later that it would no longer defend DOMA [JURIST reports]. Later that month, the DOJ withdrew from the appeal [letter to court text, PDF]. When they declined to pursue this case further, House Speaker John Boehner's (R-OH) DOMA defense group [JURIST report] took over the defense, with recent Supreme Court PPACA litigator Paul Clement arguing the constitutionality of the law for them. As a portend for future legal battles, the DOJ argued that laws affecting LGBT citizens should receive "heightened scrutiny" above rational basis [Cornell LII backgrounder]:
The Department's position is that the most common way for dealing with this situation would be for the court to take the case en banc so it can address the heightened scrutiny analysis on the merits. ... [b]ut the judgment that the President and the Attorney General have made is that heightened scrutiny is the appropriate standard precisely because rational basis would permit and arguably even require the court to disregard the facts of what actually happened, of what actually motivated the statute, and the reality of the history of discrimination against this particular group.In addition to the DOJ, a representative for Massachusetts Attorney General Martha Coakley [official website] and an attorney for Gay & Lesbian Advocates & Defenders (GLAD) [advocacy website], the original litigants in the two appealed cases, argued against the constitutionality of DOMA. GLAD contended that the inherent purpose of DOMA was to discriminate [press release] against same-sex couples, not to defend any right to marriage: "DOMA's precise point was to create an across the board exclusion of same-sex couples in the US Code. The promise of equal protection is that likes are to be treated alike—but DOMA treats married same-sex couples differently from all other married persons, making gay people and our marriages unequal to all others."
The DOJ is appealing rulings by Judge Joseph Tauro of the US District Court for the District of Massachusetts in two separate cases, one brought by Massachusetts Attorney General Martha Coakley and another by an advocacy group representing married LGBT citizens [JURIST reports]. Judge Joseph Tauro ruled in both cases that DOMA's definition of marriage as between a man and a woman is unconstitutional because it interferes with the states' right to define marriage [JURIST report]. The Obama administration last month petitioned the US Court of Appeals for the Ninth Circuit [official website] for an expedited en banc review [JURIST report] of two test cases on the constitutionality of DOMA.