GLAD’s lawsuit against DOMA argued today in federal court in Boston

Gill et al. v. Office of Personnel Management, the case against DOMA brought by GLAD on behalf of eight married same-sex couples and three widowers, is being argued today in a federal courtroom in Boston today.

Mary Bonauto, the lead attorney for GLAD, and GLAD’s Legal Director Gary Buseck, did a conference call on Tuesday to preview the hearing. She explained that this is not a marriage case. This is about people who are already married but are being treated differently under federal law. And, she explained, “the Theory of case rests on equal protection.”

The crux of the argument is that in Massachusetts, DOMA splits splits mass married people into two classes. One group gets federal protections. That would be married straight couples. One group does not get those protections. That would be the married same-sex couples. That should violate the equal protection clause.

The Department of Justice, according to Bonauto, is a “very powerful adversary.” While the DOJ has stated in its recent briefs that the President supports repeal of DOMA, that is “window dressing.” DOJ maintains that the judge should apply the lowest level of judicial scrutiny, the rational basis test, in this case. The government would only have to prove a “rational basis” for the legislation meaning “a legislative policy must be upheld so long as there is any reasonably 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.” That’s a very low standard considering the rights that are at stake.

GLAD wants a higher scrutiny. But, Bonauto thinks the governments arguments fail anyway. GLAD maintains the DOJ’s arguments are “not sensible.” I have to agree. I posted the DOJ’s brief in the case here.

Legal experts think GLAD’s lawsuit presents one of the best cases against DOMA. One certainly gets a sense from Bonauto that she knows exactly what she is doing. I got off the conference call feeling that we are in very good hands. We’ll provide updates after the hearing.

One last thing: Bonauto said she believes the DOJ will be represented in court by Scott Simpson. He wrote the infamous DOJ DOMA brief last June that ended up causing such a huge controversy.

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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