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Boston Appeals Court Considers Constitutionality Of DOMA

BOSTON — Monday was the first time that a federal appeals court heard a case on the Defense of Marriage Act, or DOMA. Seventeen people from Massachusetts, gay and lesbian couples and widowers, filed a lawsuit saying the law is unconstitutional. The law defines marriage as between a man and a woman.

Outside the federal courthouse on Monday was Mary Richie, of Framingham, and her wife, Kathleen Bush.

“Mary is a state trooper with the Commonwealth of Massachusetts,” Bush said. “When an officer dies in the line of duty, there are special benefits given to those troopers.”

“There’s what’s called a public safety benefits act offered by the Department of Justice,” Richie said. “It’s a federal benefit that would allow for any public safety officer killed or disabled in the line of duty to have their spouse have a death benefit as well as an educational benefit if they needed to get back into the workforce. Kathy, not being recognized as my federal spouse, would be denied those benefits.”

President Obama has ordered the Department of Justice not to defend DOMA, and Assistant U.S. Attorney General Stuart Delery was in court arguing against the law. He said it was clear from the outset that Congress was out to discriminate.

“Starting with the name of the statute, Defense of Marriage Act,” Delery said. “It’s a defense against something, and that something was same-sex couples.”

Because the Department of Justice is no longer defending DOMA, House Republican leaders hired Paul Clement to do the job. He’s the same man who argued in the Supreme Court last week against Obama’s health care law.

During Clement’s arguments, the court’s recording system malfunctioned, so media in an overflow room were unable to hear his arguments. Requests to speak to Clement were not returned in time for this story.

Massachusetts Attorney General Martha Coakley is also trying to get DOMA declared unconstitutional. She argues that Congress is interfering with states’ constitutional right to define marriage. Representing Coakley was Assistant Attorney General Maura Healey.

The three-judge panel did not ask many questions of the lawyers. But at one point, Chief Judge Sandra Lynch did ask Healey to respond to one of Clement’s points.

“Mr. Clement argues that section two in fact preserves the right of Massachusetts to define marriage as it chooses to do, and it ensures that there will be full faith and credit, that there is no interference here with Massachusetts decisions,” Lynch said. “The question is, rather, whether Massachusetts’ decision can drive the federal government’s decision about its benefits programs, which it gives to employees, and tax consequences. So, he views this as the sort of reverse of the way that you are articulating this.”

“I understand the argument that they’re making, that this is an argument about federal benefits and definitions and federal statutes, but that’s a red herring,” Healey replied. “Ours is simply that where Congress chooses to use marriage as a term in its statutes, it must do what it has always done and what it has to do under the Tenth Amendment, and accept a state marriage. There is no other type.”

Representing the Massachusetts couples and widowers was Mary Bonauto of Gay and Lesbian Advocates and Defenders, or GLAD. She responded to another argument Clement made, that Congress had to pass DOMA in 1996 because Hawaii’s highest court appeared to be on the verge of recognizing gay marriage.

“For the entire history of our country, the one constant about marriage law has been change,” Bonauto said. “Change that has been passionately contested between states and at times the federal government, even weighing in about whether it wanted to advance a constitutional amendment. But nonetheless, the federal government has consistently maintained deference to the states.”

Bonauto and GLAD changed the country in 2003 when they won the lawsuit that legalized gay marriage in Massachusetts. Now, they’re hoping to change the country again by getting DOMA struck down.

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