San Francisco Chronicle report on two Massachusetts cases challenging the federal DOMA

12/1/09 SF Chronicle:

In Gill v. Office of Personnel Management [No. 1:09-cv-10309-JLT, (U.S.Dist.Ct., D. Mass.)], plaintiffs challenge the section of the federal DOMA that limits federal marriage benefits, rights and protections to heterosexual couples. (Here are the November 17th filings by plaintiffs' counsel, Gay and Lesbian Advocates and Defenders.) Chronicle reporter Bob Egelko focuses on two central disputes in the case, but in passing considers a third.

First, plaintiffs claim that the federal government has no legitimate reason to impose such disproportionate burdens on married same-sex couples. Obama's Department of Justice (DoJ) acknowledges that the law discriminates and seeks its repeal. But DoJ defends it as a reasonable means to keep "the federal status quo while preserving the ability of states to grant marriage rights to same-sex couples." Second, plaintiffs claim that the federal government has intruded upon the exclusive authority of states to define marriages, while DoJ argues that DOMA leaves it up to each state to determine who may marry.

Almost as an afterthought, Egelko references another case [Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services, Case No. 1:09-cv-11156-JLT (U.S.Dist.Ct., D. Mass.)], in which the state "says it is being forced by federal law to become an accomplice to discrimination," contrary to its own marriage-equality law.

Egelko relies on law professor Calvin Massey to address another question. This is whether discrimination based on sexual orientation warrants the strictest standard of constitutional review, and, if so, whether it can be justified under that standard:

Except for laws that discriminate based on such categories as race, sex or religion, Massey noted, the [U.S. Supreme C]ourt has allowed Congress to treat groups differently as long as lawmakers had a conceivable legitimate reason to do so. He said the government's argument in this case would probably pass that test. But Massey said the Supreme Court has indicated that it will take a closer look at laws aimed against homosexuals, in its 1996 ruling [Romers v. Evans, 517 U.S. 620 (1996)] overturning a Colorado law that prohibited cities and counties from adopting gay rights measures and a 2003 decision [Lawrence v. Texas, 539 U.S. 558 (2003)] striking down anti-sodomy laws. If the high court takes up the Massachusetts case, he said, "my prediction is that (the administration's) justification will be treated with some skepticism."