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Mary Bonauto, the lawyer for the couples who challenged the Defense of Marriage Act, addresses the media after a hearing at the U.S. Court of Appeals on April 4 in Boston. (AP)

Court Rules Against Key Part Of Gay Marriage Law

May 31, 2012 (All Things Considered)

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Nina Totenberg

A federal appeals court in Boston ruled unanimously Thursday that a key part of the Defense of Marriage Act is unconstitutional. Ultimately, however, the court said that it will be up to the U.S. Supreme Court to determine whether the federal government can deny economic entitlements to legally married same-sex couples.

The Defense of Marriage Act, known as DOMA, was enacted in 1996 and signed by President Clinton. Under the law, the federal government is barred from recognizing same-sex marriage, even in states where such unions are legal. The result is that the federal law denies all federal benefits to legally married same-sex couples. Seven of these couples and three widowers who were all legally married in Massachusetts challenged the law in court, claiming it denied them equal protection of the law guaranteed by the Constitution.

On Thursday, a three-judge appeals court panel ruled in their favor, noting that under DOMA, same-sex couples who are legally married were denied federal benefits that heterosexual married couples are entitled to. Among those benefits are Social Security spousal and survivors' awards, health care benefits for spouses of federal employees, and tax advantages for married couples.

Writing for the court, Judge Michael Boudin observed that most Americans live in states where same-sex marriage is banned, and that only a half-dozen or so states have legalized such unions. That "diversity," he wrote, "is one of the virtues of federalism." Congress, in enacting the Defense of Marriage Act, simply did not offer adequate justification for denying federal benefits to same-sex couples who are legally married, he said.

Although DOMA is filled with tributes to heterosexual marriage, Boudin wrote, "nothing in the law explains how denying benefits to same-sex couples will reinforce heterosexual marriage," or help heterosexual couples "whose marriages may in any event be childless, unstable, or both." Nor, he said, does the law make much sense since it would allow legally married same-sex couples to ignore federal ethics laws if one spouse is a federal employee, member of Congress or a federal judge.

As to the law's stated purpose of supporting the tradition of marriage as between a man and a woman, Boudin said that such a rationale may have sufficed before, but in the last half-century, the Supreme Court's decisions have called for "closer scrutiny" of government action touching on the interests of minority groups and the long-recognized power of the states in matters such as marriage and family law.

Couples Elated

The decision did not address the other section of the Defense of Marriage Act, which allows states that ban same-sex marriage to refuse to recognize marriages performed in states where they are legal. The court said there was no need to deal with that issue, since it was not part of the court challenge.

The court also left in place a stay of its decision so that the federal law will remain in effect during an appeal to the U.S. Supreme Court.

Boudin, the author of the judicial panel's opinion, was appointed by President George H.W. Bush. His opinion was joined by Judge Sandra Lynch, appointed by President Clinton; and Judge Juan Torruella, appointed by President Reagan.

The couples who brought the challenge to DOMA were predictably elated by the ruling. Bette Jo Green, 70, a retired labor and delivery nurse, and her spouse, Jo Ann Whitehead, have been together for 30 years and were married eight years ago, soon after same-sex marriage became legal in Massachusetts. They sued after being denied Social Security spousal benefits.

Marlin Nabors sued with his spouse, Jonathan Knight. They pay almost $3,000 extra each year in taxes because DOMA bars them from filing a joint return.

"How validating it is to know that the appeals court judges sat around a conference table and came to the same conclusion that Jonathan and I have come to around our coffee table — that we deserve to be treated like every other married couple," Nabors said.

Headed For The High Court

Nonetheless, everyone, including the three-judge panel, acknowledged that this case is headed straight to the U.S. Supreme Court. Mary Bonauto, the lawyer for the couples, cast the decision as a narrow one that she contended could appeal to conservative as well as liberal members of the high court.

"This law's a real outlier because it inserts Congress into an area that states govern," she noted.

But Gary Bauer, chairman of American Values, a conservative public policy group, sees the decision as the proverbial camel's nose in the tent. "This is the way over the last 30 years that courts in the United States have ordered radical social change," he said. Comparing the DOMA ruling to early abortion decisions limited to rape and incest, he said, "American elites overwhelmingly support same-sex marriage. They see it as the civil rights struggle of modern times. The only problem is that the American people disagree."

Just weeks ago, President Obama for the first time endorsed gay marriage but said that, in his view, the question should remain with the states. His Justice Department, after initially defending the Defense of Marriage Act in the lower courts, made a highly unusual legal U-turn in this case to side with the couples challenging the law.

At that point, the House Republican leadership hired its own lawyer to defend the law in court. But Thursday no member of the GOP House leadership was available for comment.

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