BREAKING: DoJ argues to dismiss 2nd anti-DOMA case

A while ago, I updated you on the ongoingfederal court cases relevant to marriage equality: Gill and Smelt, on DOMA, and Perry, on Prop8. Smelt was subsequently dismissed, on a technicality.

Gill originates in Massachusetts and argues that it is unconsitutitonal to treat legally married Massachusetts citizens differently under federal law simply because they are gay. According to the NY TImes, Obama's DoJ has just filed a brief asking for the dismissal of Gill. This is another brief that says, "we don't like DOMA, but it's the law and we think it's constitutional".

Lawdork comments,

On the substance of its defense of DOMA, DOJ plays a little too cute, parsing the marriage prohibitions as a state matter and DOMA as just a matter of federal benefits. Id. at 14 (”DOMA deprives same-sex couples of certain federal benefits that are tied to marital status. There is no fundamental right, however, to marriage-based federal benefits.”)......

DOJ then asserts that First Circuit precedent prohibits the District Court from considering this case under the strict scrutiny review urged, in part, by GLAD in its Complaint. Strict scrutiny review is the most search review, in which the government needs to show a “compelling interest” for the law and show that the law is “narrowly tailored” to that interest. DOJ argues:

The First Circuit has concluded, however, that sexual orientation does not constitute a suspect classification under the Fifth Amendment, and that holding is binding on this Court. . . . .

Then, in urging that DOMA be upheld under rational basis — the most deferential — review, DOJ goes into a new and interesting argument, essentially that DOMA prevents federal government benefits from being a mismatch differing by state based on the whims of those states. I’ve not seen an argument like this before:

As the state legislative and constitutional activity in the years since DOMA was enacted demonstrates, same-sex marriage is a contentious social issue. Given the evolving nature of this issue, Congress was constitutionally entitled to maintain the status quo pending further evolution in the states. Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each State, with the meanings of those terms under federal law potentially changing with any change in the status of the debate in a given State. Federal rights would vary dramatically from State to State. Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits.

GLAD's press release in response:

Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional. Married same-sex couples are being treated differently from other married couples. To us, that’s a clear-cut violation of the promise of equal protection.”

Gary Buseck, GLAD’s Legal Director said, “We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies.”

I am so tired of my rights as a US citizen been argued in this way.