Posted by Chris Geidner |
May 31, 2012 10:45 AM | Permalink
Section 3 of the Defense of Marriage Act — the federal definition of “marriage” and “spouse” — is unconstitutional, a federal appeals court in Boston ruled today. The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management and Massachusetts v. United States, is the first instance of a federal appellate court striking down any portion of the 1996 law.
Writing that “Supreme Court review of DOMA is highly likely,” the appeals court has stayed, or put on hold, the implementation of its decision pending any appeal.
Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: “[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
The decision follows oral arguments that were held in the cases on April 4. Today’s decision upholds U.S. District Court Judge Joseph Tauro’s July 8, 2010, decision finding the federal law defining marriage as consisting of only one man and one woman to be unconstitutional.
In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Department of Justice Civil Division Chief Stuart Delery and Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey.
Because DOJ stopped defending Section 3 of DOMA in February 2011, the House Bipartisan Legal Advisory Group — controlled 3-2 by Republicans — voted to defend the law. Paul Clement, a lawyer for Bancroft PLLC, was hired to do so, and was the sole lawyer defending the law in Boston on April 4.
Although some of the parties seeking to strike down the law had urged that the court apply a form of “heightened scrutiny,” similar to the examination courts make to laws classifying people based on race or sex, for example, the court held that it was limited by its own earlier decision in a “Don’t Ask, Don’t Tell” challenge, as well as the fact that the U.S. Supreme Court has not chosen to use a higher standard of review yet.
In the absence of heightened form of scrutiny, courts traditionally seek only a rational basis to uphold the validity of a law. Looking at a series of cases that “stressed the historic patterns of disadvantage suffered by the group adversely affected” — most recently, the Romer v. Evans challenge to Colorado’s anti-gay Amendment 2 — the court noted another route: “These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.”
Applying this standard — sometimes called “rational basis with teeth” — the court held that none of the potential reasons for upholding Section 3 of DOMA passed constitutional muster.
As to the federalism principles — questions relating to the allocation of powers between and among the federal government and the states — that were primarily advanced by Massachusetts in its case, Boudin wrote for the court, “In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.”
After examing the potential justifications offered by BLAG, the court held, “Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.”
Boudin did so despite holding that the court “do[es] not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.”
Boudin was joined in the decision by Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, appointed by President Ronald Reagan.
White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.
BLAG will now need to decide if it wishes to ask all of the judges of the First Circuit to review the decision en banc — which Bonauto noted in a conference call today is unlikely due to the fact that the small size of the court, five active judges, makes reversal extremely unlikely — or whether it immediately move to ask the U.S. Supreme Court to hear the case in a process called certiorari.
A second DOMA challenge, Golinski v. Office of Personnel Management, is on appeal before the U.S. Court of Appeals for the Ninth Circuit is scheduled for oral arguments in early September. It was struck down by Judge Jeffrey S. White earlier this year. A third DOMA decision, in Dragovich v. Department of Treasury, was issued on May 24, striking down Section 3 of DOMA as it impacts the ability of same-sex couples to participate in a California pension fund program.
Additionally, Servicemembers Legal Defense Network has a pending challenge, McLaughlin v. Panetta, and the Southern Poverty Law Center has its own challenge, Cooper-Harris v. United States, challenging DOMA’s application to servicemembers and veterans’ benefits. Both are still at the trial-court stage.
READ the opinion: Gill-FirstCircuit.pdf
[Photo: Gay & Lesbian Advocates & Defenders lawyer Mary Bonauto, left, apeaks with reporters along with Massachusetts Attorney General Martha Coakley (D), right, and her Civil Rights Division chief, Maura Healey, outside the John Joseph Moakley U.S. Courthouse in Boston on April 4, 2012. (Photo by Chris Geidner.)]
We are making progress and I could not be more thrilled!!!!!!! Found this story on FB posted by author Ann Rice who is a wonderful defender of LTGB rights
found this very interesting story and facts at:
I fully belive that most women are smart enough to understand that it only takes one time to either get pregnant or worse get an STD. My advice has always been to be safe not sorry. Unless we get to a point in life that our smart phone app can scan someone to see if they have a disease, and put a barrier around your body that prevents unplanned babies PLEASE people use protection!!!!!!!
Everyone is doing it!
As Republican lawmakers have pushed ever more intrusive and expansive uterus-related legislation, some of their colleagues across the aisle have fired back with intentionally and equally ridiculous counterproposals. From mandatory rectal exams for guys seeking Viagra to prohibitions on sperm-stifling vasectomies, most of these male-only provisions have, unsurprisingly, flopped. But they’ve scored big as symbolic gestures, spotlighting the inherent sexism of laws that regulate only lady parts.
Some of the tongue-in-cheek ideas introduced across the country:
Delaware: By an 8 to 4 vote, the Wilmington, Delaware, city council recognized the personhood of semen because “each ‘egg person’ and each ‘sperm person’ should be deemed equal in the eyes of the government.”
Virginia: As the state Senate debated requiring transvaginal ultrasounds for women seeking abortions, Sen. Janet Howell proposed mandating rectal exams and cardiac stress tests for men seeking erectile dysfunction meds. Her amendment failed by just two votes.
Georgia: Responding to a Georgia house bill banning abortions after 20 weeks of pregnancy, Rep. Yasmin Neal wrote a bill outlawing most vasectomies because they leave “thousands of children…deprived of birth.”
Ohio: A bill introduced by state Sen. Nina Turner would compel men to get psychological screenings before getting prescriptions for impotence meds. “We must advocate for the traditional family,” Turner said, “and ensure that all men using PDE-5 inhibitors are healthy, stable, and educated about their options—including celibacy as a viable life choice.”
Illinois: State Rep. Kelly Cassidy proposed requiring men seeking Viagra to watch a video showing the treatment for persistent erections, an occasional side effect of the little blue pill. As she explained, “It’s not a pretty procedure to watch.”
Missouri: Protesting the legislature’s vote to reject Obama’s contraception coverage mandate, nine female lawmakers cosponsored a bill restricting access to vasectomies except for men risking death or serious bodily harm. “In determining whether a vasectomy is necessary,” the bill reads, “no regard shall be made to the desire of a man to father children, his economic situation, his age, the number of children he is currently responsible for, or any danger to his wife or partner in the event a child is conceived.”
Oklahoma: When a zygote-personhood bill came before the state Senate, Sen. Constance Johnson penned an amendment declaring that ejaculating anywhere outside a woman’s vagina constitutes “an action against an unborn child.” Bonus: Johnson also suggested that any man who impregnates a woman without her permission should pay a $25,000 fine, support the child until age 21, and get a vasectomy, “in the spirit of shared responsibility.” In response to the same bill, state Sen. Jim Wilson proposed an amendment requiring the father of an unborn child to be financially responsible for its mother’s health care, housing, transportation, and nourishment during pregnancy.
Texas: Contesting a bill mandating sonograms before abortions, Rep. Harold Dutton unsuccessfully offered three amendments in a row. The first would have required the state to pay the college tuition of children born to women who decide against an abortion after seeing a required ultrasound image. The second would have subsidized the children’s health care costs until age 18. When that failed, he lowered the age to 6. That didn’t fly, either.
found this at
Why Can’t I Own a Canadian?
Dr. Laura Schlessinger is a radio personality who dispenses advice to people who call in to her radio show. Recently, she said that, as an observant Orthodox Jew, homosexuality is an abomination according to Leviticus 18:22 and cannot be condoned under any circumstance. The following is an open letter to Dr. Laura penned by a east coast resident, which was posted on the Internet. It’s funny, as well as informative:
Dear Dr. Laura:
Thank you for doing so much to educate people regarding God’s Law. I have learned a great deal from your show, and try to share that knowledge with as many people as I can. When someone tries to defend the homosexual lifestyle, for example, I simply remind them that Leviticus 18:22 clearly states it to be an abomination. End of debate. I do need some advice from you, however, regarding some of the other specific laws and how to follow them:
When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odor for the Lord – Lev.1:9. The problem is my neighbors. They claim the odor is not pleasing to them. Should I smite them?
I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her?
I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness – Lev.15:19- 24. The problem is, how do I tell? I have tried asking, but most women take offense.
Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend of mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can’t I own Canadians?
I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself?
A friend of mine feels that even though eating shellfish is an abomination – Lev. 11:10, it is a lesser abomination than homosexuality. I don’t agree. Can you settle this?
Lev. 21:20 states that I may not approach the altar of God if I have a defect in my sight. I have to admit that I wear reading glasses. Does my vision have to be 20/20, or is there some wiggle room here?
Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev. 19:27. How should they die?
I know from Lev. 11:6-8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?
My uncle has a farm. He violates Lev. 19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend). He also tends to curse and blaspheme a lot. Is it really necessary that we go to all the trouble of getting the whole town together to stone them? – Lev.24:10-16. Couldn’t we just burn them to death at a private family affair like we do with people who sleep with their in-laws? (Lev. 20:14)
I know you have studied these things extensively, so I am confident you can help. Thank you again for reminding us that God’s word is eternal and unchanging.
Your devoted fan,
Found this great story on Stumble upon thought I would share it