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Appeals court hearing challenge to Defense of Marriage Act

By David G. Savage, Tribune Washington Bureau –

WASHINGTON — A closely watched constitutional challenge to the Defense of Marriage Act went before a U.S. appeals court for the first time Wednesday, setting the stage for a possible Supreme Court decision next year on whether legally married same-sex couples are entitled to equal benefits under federal law.

At issue is not whether gays and lesbians have a right to marry, but whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can marry.

Mary Bonauto, a lawyer for Gay & Lesbian Advocates and Defenders in Boston, argued that states have always set the laws on marriage and family. By refusing to recognize same-sex marriages in states such as Massachusetts, the 1996 federal law created “an across-the-board exclusion” to equal rights and benefits, she said.

Her clients include Nancy Gill, a U.S. postal worker, and her spouse Marcelle Letourneau, who are raising two teenagers. The federal law forbids adding her spouse to her healthcare plan.

Bonauto urged the judges to strike down this discrimination as a violation of the Constitution’s guarantee of equal protection of the laws.

The oral argument took place before the U.S. 1st Circuit Court of Appeals in Boston. Chief Judge Sandra Lynch, a Clinton appointee, and Judges Juan Torruella, the court’s first Puerto Rican judge, appointed by President Ronald Reagan, and Michael Boudin, an appointee of President George H.W. Bush, will decide the case.

Gay-rights advocates said they were cheered by the tone of the argument. The three judges asked relatively few questions during the hourlong argument, but the most skeptical questions were directed to Paul Clement, President Bush’s solicitor general, who is defending the federal law on behalf of the House Republicans.

Usually, the Justice Department defends federal laws in court, but last year, President Obama and Atty. Gen. Eric Holder announced they would not defend the disputed part of DOMA.

Clement said Congress had the right to maintain the traditional definition of marriage. “There are perfectly rational” reasons to uphold the law, and he urged the judges not to second-guess Congress. “Do you want to constitutionalize this issue, or leave it to the democratic process?” he asked in closing.

This made for something of a role reversal for Clement as well for the Obama administration lawyers.

Last week, Clement urged the Supreme Court to strike down the Affordable Care Act passed by Congress in 2010. He said it violated the “sovereign” rights of 26 Republican-led states because it would force them to expand the Medicaid program and its health care for low-income persons.

But in his brief in the DOMA case, he stressed the more traditional conservative view that judges should defer to elected lawmakers. There is “a strong presumption accorded to Acts of Congress,” he wrote. “This is not a mere polite gesture. It is a deference due the deliberate judgment of constitutional majorities of the two houses of Congress.”

Last week, it was the Obama administration lawyers who were urging the court to defer “to the democratically accountable branches of government” and uphold the health care law. However, in the DOMA case, they urged the judges to strike down the key part of the 1996 law because it denies equal treatment to same-sex couples. A lawyer for Massachusetts also urged the judges to strike down the law on grounds that it interfered with the state’s right to define marriage for its own residents.

Two years ago, a federal judge in Massachusetts declared unconstitutional the part of DOMA which denied equal benefits to legally married gay couples. That decision led to Wednesday’s appeal.

Regardless of how the 1st Circuit rules, the losing side is expected to appeal the issue to the Supreme Court later this year.

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