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.