Tag Archives: ZZ: Gill v. Office of Personnel Management

House Minority Leader Nancy Pelosi led 130 fellow Democrats in filing a friend-of-the-court brief Thursday challenging the 1996 Defense of Marriage Act, arguing that Republicans defending the law, which denies all federal benefits to married same-sex couples, do not represent the full House.

GLAD: Today, the U.S. House of Representatives filed a motion to intervene in Gill v. Office of Personnel Management the multi-plaintiff challenge to Section 3 of the Defense of Marriage Act (DOMA), filed by Gay & Lesbian Advocates & Defenders (GLAD) with co-counsel Foley Hoag LLP, Sullivan & Worcester and Jenner & Block in March 2009.

Alliance Defense Fund attorneys say they are encouraged by the further efforts of the U.S. House of Representatives to defend the federal Defense of Marriage Act following the House’s announcement Monday of its official legal team.

GLAD: The Department of Justice followed Wednesday’s withdrawal from two DOMA cases in the Second Circuit, including GLAD’s Pedersen v. OPM by notifying the clerk of the First Circuit that they will also “cease to defend” the two consolidated DOMA cases, Gill v. Office of Personnel Management and Massachusetts v. HHS. The DOJ has not sent a letter to the Congress declining to defend DOMA in toto in the Gill case, so its determination may only apply to the extent the court determines that heightened scrutiny is the proper standard of review for DOMA’s constitutionality.

House Speaker Boehner announces that U.S. House will initiate legal defense in wake of Dept. of Justice’s refusal to do so

Christian Post: Alliance Defense Fund Senior Legal Counsel Austin Nimocks said the administration is “playing politics with marriage” and has left DOMA virtually defenseless. “With the Department of Justice now refusing to defend any and all lawsuits against the federal Defense of Marriage Act, the federal definition of marriage has been placed in great legal peril,” he declared.

Marcia Coyle at the Blog of the Legal Times: “A spokeswoman for Smith said his lawyers would need to review the cases pending in the 2nd Circuit before making any decision to try to intervene. Representing Smith in the 1st Circuit were three lawyers from the conservative Alliance Defense Fund, including senior counsel Brian Raum, and a solo practitioner from Salem, Mass., Philip Moran. A spokesman for House Speaker John Boehner (R-Ohio), to whom Holder addressed a letter explaining the administration’s decision, did not immediately respond to a request for comment.”

“Unfortunately, the U.S. Department of Justice has chosen not to defend DOMA based on the well-established rationales that Congress cited when it passed the law.”

Presidential Prayer Team: “Though the brief acknowledges that ‘in the end, the large majority of states today do not recognize same-sex marriage,’ Alliance Defense Fund Legal Counsel [Dale Schowengerdt] criticized the defense as being ‘deficient,’ asserting that the Department of Justice is giving a weak defense of DOMA because the president is in favor of its repeal.”

Pacific Justice Institute: “The federal Defense of Marriage Act (DOMA) is heading to the First Circuit Court of Appeals. In two separate cases, one brought by same-sex couples married in Massachusetts and the other by the Commonwealth of Massachusetts, a judge struck down a challenged section of the law which defines marriage for the purpose of interpreting federal statutes, regulations and administrative bureaus whenever the word ‘marriage’ or ‘spouse’ is used.”

Christian Post: “The Department of Justice on Thursday filed an appeal in two cases in defense of the federal Defense of Marriage Act . . . Alliance Defense Fund Legal Counsel [Dale Schowengerdt] criticized DOJ’s defense as ‘deficient.’ ‘The administration refuses to make the argument that the Congress made [when establishing DOMA],’ asserted Schowengerdt.”

The U.S. Department of Justice on Thursday told a federal appellate court that the Defense of Marriage Act does not violate the constitutional rights of same-sex married couples or their survivors and is a constitutional exercise of authority by Congress.

Mike Dorf writing at Dorf on Law: “Federal district courts have recently taken action on gay rights on three fronts: (1) Perry v. Schwarzenegger found a right of same-sex couples in California to marry; (2) Gill v. Office of Personnel Management and its companion case invalidated the provision of the Defense of Marriage Act (DOMA) that denies federal recognition to same-sex marriages that are legal under state law (there Massachusetts); and (3) Log Cabin Republicans v. United States invalidated Don’t-Ask-Don’t-Tell (DADT). Each case is currently pending on appeal. The issue presented in each case will probably make it to the Supreme Court within the next few years. Does the order in which they arrive matter? Possibly.”

One News Now: Alliance Defense Fund (ADF) is dubious about how committed the Justice Department really is to defending traditional marriage . . . ADF attorney [Daniel Blomberg] tells OneNewsNow he is pleased that the DOJ will move to protect traditional marriage, but notes its defense of DOMA in the lower courts was not well presented . . . (Daniel is quoted).

“The DOJ on Tuesday filed a notice of appeal in rulings made by U.S. District Judge Joseph Tauro in two separate lawsuits.”

Statesman.com: “Tauro has yet to rule on Smith’s motions, filed Oct. 5 by the Alliance Defense Fund, an organization of Christian lawyers active in religious liberty, family and marriage issues.”

One News Now: “Dale Schowengerdt, litigation attorney with ADF, tells OneNewsNow a federal judge struck down the DOMA law as unconstitutional in those two cases in July, but the rulings are on hold pending appeal. ‘Since then, the Department of Justice has refused to say whether it’s going to appeal the case,” he reports. “And frankly, during the litigation of the case, it gave…basically a sham defense of the law in the first place. So we moved to intervene on behalf of Representative Lamar Smith (R), who is the ranking member of the House Judiciary Committee.’”

CitizenLink: “[Dale Schowengerdt], legal counsel with the Alliance Defense Fund, said the same attorneys successfully defended the law during the Bush administration. ‘Under the Obama administration, the Justice Department has basically thrown the case, and has refused to make the winning arguments,’ Smith said. ‘Arguments that just a few years ago they were making to district court cases and similar challenges to DOMA and winning.’”

Dallas Voice: “‘We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,’ said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. ‘If the Obama administration won’t defend marriage, we are ready and willing to do so.’”

Christian Post: “In an effort to breathe new life into legislation to protect marriage nationwide, the ranking Republican in the House Judiciary Committee, Lamar Smith of Texas, and his legal team have filed two motions in defense of the 1996 Defense of Marriage Act . . . ADF asserted, ‘The DOJ’s practical abdication of its own proven legal arguments, plus its ambivalence on whether it will even appeal, warrants intervention to ensure that widely-supported Congressional legislation like DOMA receives a fair and vigorous defense.’”

LezGetReal: “On 5 October, the Alliance Defense Fund claimed that the DoJ is not mounting any kind of defense of DOMA. [Dale Schowengerdt], a lawyer for the ADF stated ‘We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts. If the Obama administration won’t defend marriage, we are ready and willing to do so.’”

Keen News Service: “The Alliance Defense Fund (ADF) announced Tuesday that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled—in two cases—that one part of the federal Defense of Marriage Act (DOMA) is unconstitutional.”

“[The president has left] the Defense of Marriage Act (DOMA) unprotected in the hands of activist judges. When a federal district court ruled in July that DOMA was unconstitutional, it fell to Obama’s Justice Department to fight for the law . . . As of this week, the Department of Justice (DOJ) hadn’t lifted a finger to appeal the ruling . . . Together with the Alliance Defense Fund (ADF), the GOP’s ranking member [Congressman Lamar Smith (R-Texas)] on the House Judiciary committee is petitioning the U.S. District Court of Massachusetts to intervene.”

“Alliance Defense Fund attorneys representing U.S. Rep. Lamar Smith, the ranking Republican member of the House Judiciary Committee, filed two motions to intervene to defend the federal Defense of Marriage Act in federal court Tuesday.”

Leonard Link: “One question that immediately began buzzing around the blogosphere was whether the Obama Administration’s Justice Department will appeal these rulings. Others are when will the rulings take effect, and do they have any application outside of Massachusetts? Within the past few days, some answers have begun emerging.”

San Diego Gay and Lesbian News: “An amended judgment was entered on Aug. 18 in Gill v. Office of Personnel Management, the challenge to the Defense of Marriage Act filed by Gay & Lesbian Advocates & Defenders (GLAD). Simultaneously, a stay was issued pending any appeal by the government to the U.S. Court of Appeals for the First Circuit. It supersedes a judgment entered by the federal district court on Aug. 12, 2010.”

“It’s been 40 days since U.S. District Court Judge Joseph Tauro ruled—in two cases—that the federal benefits provision in the Defense of Marriage Act is unconstitutional . . . the government has not yet decided whether it will appeal.”

ACLU Blog of Rights: “The summer got started a little early with Portugal, on June 5, becoming the sixth European country allowing same-sex couples to marry . . . On July 8, a federal court in Boston ruled that the federal Defense of Marriage Act is unconstitutional . . . On July 22, Argentina, also through the legislative process, became the first South American country to allow same-sex couples to marry . . . On August 4, a federal judge declared California’s anti-gay marriage amendment, Prop. 8, unconstitutional . . . On August 5, the Mexican Supreme Court upheld the decision of Mexico City to grant same-sex couples the ability to marry. On August 11, the Court ruled that all Mexican states must recognize the marriages of those couples married in Mexico City . . .”

Robert P. George writing at The Washington Examiner: “Two federal judges who have recently issued rulings adverse to the historic definition of marriage as the conjugal union of husband and wife show what results-oriented jurisprudence is all about. One judge claimed to base part of his ruling on a federal constitutional requirement that Congress yield to the states on their definition of marriage. The other judge ruled that the constitution requires that a state’s democratically enacted definition of marriage be struck down.”

Richard A. Epstein writing at Forbes: “The key element of the DOMA decision was its categorical conclusion that there was no conceivable rational basis to stop same-sex couples from marrying. Given the speed with which electrons travel cross-country, that Massachusetts decision gave Judge Walker a powerful signal that there was no obvious doctrinal obstacle in taking the same path. His action was emboldened by the responses of elected officials charged with upholding the federal law. None of them want to take on this battle.”

Chuck Donovan writing at The Heritage Foundation / The Foundry: “Perhaps the biggest news out of last week’s reaction to a federal judge striking down the Defense of Marriage Act (DOMA) was pundits’ response to the way the Obama Administration ‘threw the fight.’ . . . The collusion boils down to this . . . “ | Via The Engage Family Blog of the Family Policy Council of West Virginia

. . . If states have authority under the 10th Amendment to define marriage, why are federal courts, like the one in San Francisco, not immediately upholding state constitutional definitions of marriage, such as the one currently under attack in California? Is it because California voters chose to define marriage the ‘wrong’ way as one man and one woman? . . .

NPR: “Advocates are hoping two cases now in the federal courts may signal a turning point in the fight for gay marriage. A federal court in Boston ruled last week that same-sex married couples deserve federal recognition. That case, along with another in California, is likely to move the battle closer to the U.S. Supreme Court.”

Joanna L. Grossman writing at FindLaw: “In this column, I will briefly describe Judge Tauro’s ruling in [Commonwealth v. U.S. Department of Health and Human Services], and then consider the role that marriage-law history plays in both cases. … It may well be, as Judge Tauro concluded, that the only explanation for such an ill-conceived, and ill-structured law is a simple and an ugly one: sheer animus against gay and lesbian marriages. And if that’s the case, then all of DOMA should fall, including Section Three, as applied to any plaintiff who comes before any court.” | Part I is here.

Joanna L. Grossman writes at Findlaw: “By defining marriage at all, rather than deferring to each state’s definition of marriage, Congress certainly departed from its past tradition. But was the departure constitutionally invalid? That is the question that has been explored (and answered “Yes”) in both Gill v. Office of Personnel Management and Commonwealth v. U.S. Department of Health and Human Services.  In Part One of this two-part series, I will describe DOMA and explain the reasoning that led Judge Joseph L. Tauro, in Gill , to invalidate section 3 as applied to the plaintiffs in that case. In Part Two — appearing on FindLaw tomorrow, Tuesday, July 20 — I will discuss the ruling inCommonwealth and consider the marriage-regulation history that is so central to the court’s reasoning in both cases.”

Washington Post: “The silence is by design, activists with the loosely affiliated movement said, because it is held together by an exclusive focus on fiscal matters and its avoidance of divisive social issues such as abortion and gay marriage. Privately, though, many said they back the decision because it emphasizes the legal philosophy of states’ rights.”

Bishop Harry R. Jackson, Jr. writes at Townhall: “Same-sex marriage activists repeatedly declare that their victory is ‘inevitable.’ These declarations remind me of the threats youthful bullies made in my community when I was growing up. Taunting, jeering, and name-calling were all apart of their reign of intimidation.”

Christian Science Monitor: “The DC Court of Appeals ruled Thursday that Washington was within its rights to block a popular vote on same-sex marriage because the results could violate its human rights law. The city legalized gay marriage in March . . . ‘Individual states shouldn’t have the right to impose a radical redefinition of marriage on the rest of the country,’ Austin Nimocks, senior legal counsel of the Alliance Defense Fund, said in response to Judge Tauro’s decision in Massachusetts.”

ADF attorney Dale Schowengerdt appeared on Chris Fabry Live to discuss the Massachusetts Federal DOMA rulings | MP3 8:56 mins

USCCB: “’To claim that defining marriage as the union of one man and one woman is somehow irrational, prejudiced, or even bigoted, is a great disservice not only to truth but to the good of our nation,’ Archbishop Kurtz said. ‘Marriage exists prior to the state and is not open to redefinition by the state. The role of the state, instead, is to respect and reinforce marriage. Thursday’s decision, by contrast, uses the power of the state to attack the perennial definition of marriage, reducing it merely to the union of any two consenting adults. But only a man and a woman are capable of entering into the unique, life-giving bond of marriage, with all of its specific responsibilities. Protecting marriage as only the union of one man and one woman is not merely a legitimate, but a vital government interest.’”

CNS: “The chairman of the U.S. bishops’ Ad Hoc Committee for the Defense of Marriage July 12 criticized a federal judge’s ruling in two Massachusetts cases that a key provision of the Defense of Marriage Act is unconstitutional. ‘To claim that defining marriage as the union of one man and one woman is somehow irrational, prejudiced or even bigoted is a great disservice not only to truth but the good of the nation,’ Archbishop Joseph E. Kurtz of Louisville, Ky., said in a statement July 12.”

USA Today: “Lawsuits over gay marriage have escalated on the nation’s two coasts, energizing advocates on both sides and bringing the legal battle over same-sex marriage closer to the U.S. Supreme Court . . . Still, resolution of the cases now in lower U.S. courts and any Supreme Court determination on same-sex marriage is far from predictable. ‘I’m still optimistic about the Supreme Court,’ says Maggie Gallagher, president of the National Organization for Marriage, which wants to preserve marriage for heterosexuals . . . ‘Many people do not understand that Proposition 8 is not just about California,’ Gallagher says. ‘This is a national case with national implications.’”

ADF attorney Dale Schowengerdt appeared on the Janet Mefferd Show to discuss ongoing efforts to defend marriage and the recent Massachusetts rulings holding that the Federal DOMA is unconstitutional. | MP3 17:49 mins

“The latest decision from our judicial overlords on same-sex marriage spells trouble for republican constitutionalism and the institution of marriage . . .”

“The ruling again raises serious questions about the origin and purpose of law . . . So let’s see: state laws are fine when they promote the interests of the ruling liberal and cultural elites, but they are to be ignored, or overturned, when they do not promote the objectives of the ruling liberal and cultural elites. Is that it?”

ADF attorney Byron Babione appeared on the Georgene Rice Show to discuss the recent Defense of Marriage Act rulings out of Massachusetts. | MP3 11:15 mins

“This controversial case might well go up on appeal. But if so, it looks almost like collusive litigation, unless some true defender of DOMA is allowed . . . ”

Michael Dorf writes at Findlaw:  ”Last week, two civil actions in federal district courts on opposite ends of the country illustrated our Constitution’s cross-ideological interplay between federalism and individual rights. On Tuesday, the Justice Department filed suit in federal district court in Arizona, and sought a preliminary injunction against the enforcement of Arizona’s S.B. 1070, the law that, among other things, requires state and local authorities to investigate suspected undocumented immigrants. Then, on Thursday, Boston-based Federal District Judge Joseph Tauro held that Section 3 of the federal Defense of Marriage Act (DOMA)–which defines marriage, for purposes of federal law, as the union of a man and a woman–cannot be constitutionally applied in Massachusetts, which recognizes same-sex marriage . . . In this column, I explain why these two cases, involving very different topics–immigration and gay marriage–still raise parallel issues, and how, together, they show how rights and federalism issues can cut across ideology and political party . . . ”

Breitbart (AP): “The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.”

A federal judge granted summary judgment Thursday to the Commonwealth of Massachusetts in a decision against the U.S. Department of Health and Human Services, which declares the Defense of Marriage Act unconstitutional.

Hadley Arkes write at the National Review Bench Memos Blog: “Judge Joseph Tauro, in the federal district court in Boston, took it upon himself to strike down the 1996 Defense of Marriage Act (DOMA). With that stroke he would remove one of the key barriers standing in the way of imposing same-sex marriage on the nation as a whole. And it would be done through the power of judges alone, without the need to agitate the community in any political controversy, and without citizens or legislators needing to do such unseemly things as voting. Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument . . . ”

Dale Carpenter has this post at the Volokh Conspiracy discussing yesterday’s federal DOMA rulings.

“As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power . . . ”

Michael Foust writes at Baptist Press: “‘Individual states shouldn’t have the right to impose a radical redefinition of marriage on the rest of America,’ said Brian Raum, senior counsel of the Alliance Defense Fund. ‘This judge’s claim that there’s no reason whatsoever for marriage to be defined as one man and one woman should go down as one of the most outrageous rulings in court history.’ Raum noted that ‘it was a condition of statehood” that marriage be defined as one man, one woman “during the polygamy battle in the 19th century.’”

“The simple fact is that the right of the federal government to define marriage for the purposes of its federal law and federal territories has been clear since the late 19th century, when Congress banned polygamy. Only an incompetent defense could have lost this case.”

Family Research Council: “Family Research Council (FRC) Senior Vice President Tom McClusky released the following statement in response to a ruling by U.S. District Judge Joseph Tauro declaring the federal Defense of Marriage Act unconstitutional. The Defense of Marriage Act DOMA was enacted in 1996 by an overwhelming majority of 342-67 in the House and 85-14 in the Senate and was then signed by President Bill Clinton.”

“A U.S. judge in Boston has ruled that a federal gay marriage ban is unconstitutional because it interferes with the right of a state to define marriage.”

GLAD: “GLAD filed an amended complaint this week in our lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA), Gill v. OPM. The complaint updates the tax overpayments of three of the plaintiff couples due to their inability to file their federal income tax returns under the status ‘married filing jointly.’ Each couple must instead file as either a single individual or head of household when they have dependent children.”

Associated Press: “A lawsuit challenging the constitutionality of a federal law that defines marriage as a union between a man and a woman is slated for its first court hearing.”