Big wins, but GLAD expects Obama adminstration to appeal today’s DOMA decisions

Just got off a conference call with Attorney General Martha Coakley, GLAD’s Mary Bonauto, GLAD’s Legal Director Gary Buseck and two of the plaintiffs in the Gill case, Nancy Gill and Marcelle Letourneau.

Bonauto was the lead attorney in the Gill case. I’m so glad she’s on our side. So glad. Here’s her quote from GLAD’s release:

“Today the Court simply affirmed that our country won’t tolerate second-class marriages,”

On the call, Coakley spoke briefly. She first congratulated GLAD, then said this decision was “landmark step” and a “victory for civil rights.” The Massachusetts case was decided on Tenth amendment grounds.

Mary Bonauto reviewed the decision, focusing on the key pasasge on page 38 of the decision (the full ruling is here):

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Plaintiff Nancy Gill spoke briefly. She said “I’m so happy I can’t even put it into words…we’re just thrilled…absolutely thrilled.”

Bonauto explained that the Court granted summary judgment, “which means we won.” There’s been no stay of the decision yet, so, theoretically, the plaintiffs could start to obtain their federal benefits. But, Bonauto fully expects the government to appeal. If that happens, the appeal will go to the First Circuit. In that circuit, appeals are usually handled within a year. Bonauto expects that both the Gill case and Massachusetts case will be on similar schedules through the appeals process. If either case prevails at the Circuit Court, it’s expected that the Government would appeal to the Supreme Court.

When asked if the Obama administration has to appeal the decision, Buseck stated that it’s expected that the Executive Branch would appeal since it has a responsibility to defend acts of Congress. And, he added, it would be “highly unusual not to appeal.”

I have to say, when and if the Obama administration decides to appeal these DOMA rulings, it just will not sit well. Not at all.

We were told this week that the President hasn’t spoken to the constitutionality of DOMA yet. But, today, a federal court judge did. Twice. So, the Obama administration’s DOJ will now have to argue that DOMA is, in fact, constitutional. The DOJ will be arguing that the judge was wrong and DOMA is not an “irrational prejudice” and that it doesn’t violate “equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

I hope Eric Holder, Tony West and the so-called LGBT Liaison at DOJ, Matt Nosanchuk, all think really long and hard about this. And, the Obama political team better pay attention, too. How they decide to proceed with their appeal is going to be scrutinized very closely and not just from a legal perspective. It will have political ramifications.


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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