DOMA's day of reckoning

WASHINGTON-In the noisy days after the Supreme Court issued its healthcare decision, the Obama administration filed two cases with the high court challenging the Defense of Marriage Act (DOMA). The July 3 filings gained little attention but they, coupled with disagreement about DOMA among lower courts, mean the Supreme Court is almost certain to take at least one case on marriage this fall. The high court may also hear arguments on California's Proposition 8, which defines marriage as between a man and a woman. The cases could establish whether federal courts begin to treat homosexuality as a status more like race or gender.

"We'll know a lot more about the landscape of marriage by next June," said Paul Linton, a lawyer with the Thomas More Society who has been involved in various DOMA cases.

The Supreme Court filings were another chapter in the Obama administration's dramatic reversal on the marriage law. The Defense of Marriage Act, which defines marriage as between a man and a woman for federal purposes, passed Congress in 1996 with massive bipartisan majorities. President Bill Clinton signed it into law. For the first two years of President Barack Obama's term, his Justice Department defended the law in court and in consequence took heat from homosexual activists. Obama explained that even though he found DOMA "abhorrent," his administration had a "duty to uphold existing law."

But then in February 2011, Obama and Attorney General Eric Holder announced that they deemed Section 3 of the act-which defines a spouse as someone of the opposite sex and thus prohibits federal benefits to same-sex couples-unconstitutional. Holder said his attorneys would no longer defend the law. Since then, the Justice Department has not simply refused to defend the law but has participated in litigation against it.

The law's challengers aren't disputing Section 2 in DOMA, which permits states to ignore same-sex marriage laws from other states. So if a same-sex couple is legally married in Massachusetts, other states don't have to recognize that marriage-and for now, DOMA challengers are leaving that be. Same-sex marriage is currently legal in six states and the District of Columbia, while 38 states have passed laws that define marriage as between a man and a woman, according to the National Conference of State Legislatures.

After Holder and Obama's decision, the defense fell to the body that passed the law: Congress. The House appointed private sector lawyers to defend the law, with prominent Supreme Court litigant Paul Clement heading up the defense. The House is now in the unusual position of finding lawyers to defend any challenges to the law around the country.

Dale Schowengerdt with the Alliance Defending Freedom (formerly the Alliance Defense Fund) is one of those lawyers working with the House to defend DOMA in lower courts. In one challenge to DOMA in Philadelphia, he found himself standing on the side of the aisle where the Justice Department lawyer would normally stand, defending U.S. laws, while the Justice Department lawyer stood on the other side of the aisle. "When they made the announcement [that they wouldn't defend the law], we thought they'd just sit on the sidelines," he said. "It was very strange to have the DOJ lawyer get up and attack the law."

The Supreme Court's new term starts in October, and even if the justices agree to take this case right away, they almost certainly won't hear arguments until after the presidential election in November. They may not hear the case until after a January inauguration. If Mitt Romney wins the election, he will likely reverse the DOJ's current position on DOMA. That wouldn't undo any challenges to the law, but it would put the U.S. government back on the side of the law.

The DOMA case going before the Supreme Court is a May 31 ruling from the Boston-based 1st U.S. Circuit Court of Appeals, which unanimously struck down Section 3 of the law. The 1st Circuit said the government had no "permissible" interest in barring federal benefits to gay couples who are legally married. "In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality," the court wrote, alluding to one of the federal government's key arguments. But the court said DOMA doesn't "explain how denying benefits to same-sex couples will reinforce heterosexual marriage. ... Certainly the denial will not affect the gender choices of those seeking marriage." The House lawyers defending the law countered to the Supreme Court that the government has scarce resources and the benefits are restricted because the government has an interest in encouraging "responsible procreation" that allows biological parents to raise their children.

DOMA's challengers, on the other hand, have characterized the law as an impingement on states' rights-that the federal government is impeding state gay-marriage laws. But the Obama administration's brief often alludes to the larger question of whether homosexuality deserves constitutional protections similar to race.

Of the 11 circuit courts that have considered that issue, 11 have said it doesn't, according to Schowengerdt. The 1st Circuit's ruling was more complicated. It said that DOMA passed muster under "rational basis" review, the most deferential test of a law's constitutionality. The court also said that DOMA didn't need to pass a test of "heightened scrutiny"-the next level of review reserved for laws that discriminate on the basis of race or gender. But the 1st Circuit said DOMA failed somewhere between rational basis scrutiny and heightened scrutiny.

The defenders of the law, in their filing with the Supreme Court, argue that if the law were constitutional on a rational basis, and doesn't need a heightened scrutiny review, then it should be declared constitutional. The appeals court, they said, created "a previously unknown standard of equal protection review."

"This is really a stalking horse for getting the court to recognize same-sex marriage," said Linton. "If Congress may not restrict the federal benefits of marriage, the obvious next step is you can't restrict marriage to opposite-sex couples."