Friday, May 7, 2010

The DOMA arguments

Yesterday, arguments were heard in a targeted challenge to DOMA, in Gill v. Office of Personnel Management. From GLAD's press release:
Bonauto presented a three-pronged legal argument: By singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity.
The DoJ attorney defending DOMA agrees that the president opposes it, but argued that it is constitutional and must be defended. Which he did, aggressively. But he had to deal with the fact that prior to DOMA, the federal government accepted the definition of marriage from each individual state. For example, some states allow marriage between cousins; others do not. But if the marriage is legal in the state in which it was performed, traditionally the federal government has accepted that state's determination.

From the Advocate:
[Judge Tauro] asked Bonauto whether the government had legitimate arguments in saying DOMA was necessary to preserve a “status quo” concerning the federal understanding of marriage or to adapt federal law to the changing understanding of marriage incrementally.

“No, your honor,” said Bonauto: DOMA did not preserve a status quo, it upended one. Bonauto pointed out that prior to DOMA the federal government accepted each state’s definition of marriage.

It was on this point that Judge Tauro pressed the government most vigorously, asking Department of Justice attorney Scott Simpson, “When did it become a federal matter — dealing with marriage?”

Simpson, who has been DOJ’s point man for defending DOMA, tried to step around the question, but Tauro redirected his question more bluntly. “Specifically, point to an incident,” said Tauro, when marriage has been a federal matter prior to DOMA. Simpson had to concede: “it’s true” that, up until DOMA, the federal government has “simply followed the states’ definition of marriage.”
More arguments will follow.

Good sites for updates:
Hunter of Justice
And of course, the Advocate and GLAD.

1 comment:

Erp said...

Strictly speaking the federal government probably did some judging separate from the states in cases of marriages where one or both partners were applying for US visas. Most notably in that second wives from societies that accept polygamy were not recognized. I'm also not sure what happened in the case of interracial marriages where one partner was American and the other was foreign and applying for US residency/citizenship back in the days well before Loving (think 1920s).