GLAD moves for summary judgment in Gill v. OPM, wants Section 3 of DOMA declared unconstitutional

Just got off a teleconference with GLAD’s Mary Bonauto and Gary Buseck about the latest filing in Gill v. Office of Personnel Management (OPM), the lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA). Background on the case is here. With all the excellent legal minds on this call and the level of discussion, it really brought me back to law school.

Today, GLAD filed its response to the Department of Justice’s motion to dismiss our lawsuit — and moved for summary judgment. That means GLAD wants the judge to issue a ruling in its favor, as a matter of law, without proceeding to a trial. GLAD wants the judge to rule in its favor by finding Section 3 of DOMA unconstitutional as applied to the plaintiffs in the Gill case.

On September 18, 2009, the Obama administration’s DOJ filed its brief, asking that the case be dismissed. If the case proceeded, DOJ wanted the lowest level of judicial scrutiny:

the DOJ thinks DOMA should be subject to the “rational basis review,’ which is the lowest level of judicial scrutiny. All the government must do is prove a “rational basis” for the legislation meaning “a legislative policy must be upheld so long as there is any reason- ably conceivable set of facts that could provide a rational basis for it, including ones that Congress itself did not advance or consider. DOMA satisfies this standard.”

GLAD wants the court to use a higher standard of judicial review. On the call, Bonauto explained why GLAD wants that heightened scrutiny and it was also laid out clearly in GLAD’s press release:

GLAD argues that under Equal Protection guarantees, there is no justification for splitting married people into two classes: those who are “married” under federal law and those whose marriages do not exist for any federal purposes. “We believe that DOMA should receive ’heightened scrutiny’ from the District Court for many reasons, including because it deliberately targets gay men and lesbians,” said Bonauto.

More specifically, GLAD argues that

DOMA represents an unprecedented intrusion of the federal government into the states’ traditional roles in determining the marital status of its citizens.

By prohibiting married same-sex couples from accessing the safety net, the federal government provides for all other married couples, DOMA Section 3 unfairly burdens their ability to protect and care for their families.

By targeting gay men and lesbians, DOMA discriminates explicitly on the basis of sexual orientation. GLAD argues that any discrimination based upon a person’s sexual orientation should be viewed with suspicion by the court.

No federal court has applied the heightened scrutiny to issues involving sexual orientation. Bonauto also dissected the Obama administration’s argument in support of DOMA, which were along the lines of maintaining the status quo and consistency. As one reporter asked, “It seems a little weak, no?” DOMA has actually altered the status quo by creating a class of citizens whose marriages are recognized by their state, but not the federal government. As noted by the GLAD lawyers (and by us many times), the Obama administration did choose to defend the law.
The Obama administration will respond to this motion by December 4th. After that, there will be a hearing in federal court.

Several reporters asked whether this case could ultimately end up in the Supreme Court. If it does, according to the GLAD lawyers, the ruling would impact only those states that allow same-sex marriage and would determine whether the federal government would have to respect those marriages. If the judge does find DOMA unconstitutional, it’s expected that the Obama administration would appeal that ruling.

I met Bonauto during the campaign in Maine and watched her in action during debates over marriage. She’s brilliant. Just brilliant. This lawsuit represents one of the best cases against DOMA.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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