New Developments in GLAD's DOMA Challenge

There have been some new developments in the case of Gill v. Office of Personnel Management, a constitutional challenge of Section 3 of the federal Defense of Marriage Act, 1 U.S.C. sec. 7 (DOMA) that was brought in the U.S. District Court in Massachusetts by Gay & Lesbian Advocates & Defenders, New England's Boston-based LGBT public interest law firm.  GLAD brought the case on behalf of a group of plaintiffs who had encountered various kinds of discrimination from the federal government because their lawful same-sex marriages are denied recognition pursuant to Section 3 of DOMA.  On July 8, U.S. District Judge Joseph Tauro ruled that Section 3 violated the Equal Protection rights of the plaintiffs and held that they were entitled to an injunction blocking its enforcement against them.  (In a companion case brought by the Massachusetts Attorney General on a different legal theory, Judge Tauro also ruled on July 8 against the federal government, prescribing similar injunctive relief.)

One question that immediately began buzzing around the blogosphere was whether the Obama Administration's Justice Department will appeal these rulings.   Others are when will the rulings take effect, and do they have any application outside of Massachusetts?

Within the past few days, some answers have begun emerging.

First, a decision by a federal district judge does not take effect until the formal "entry of judgment" on the record.  Although Judge Tauro issued his opinion in the Gill case on July 8 (which is now officially published at 699 F.Supp.2d 374, and most easily accessible to members of the public for free by using scholar.google.com), he did not enter his judgment formally until August 12.  That set the clock ticking on the Justice Department's time to appeal, which runs for 60 days, so they have until early in October to file an appeal.  So far, the Justice Department has not announced whether they will appeal, and presumably there is some internal debate going on.  Judge Tauro's opinion pretty well shredded all of the arguments they made in defense of DOMA, and their case was undercut politically by the President's stated position that he considers DOMA to be discriminatory and urges Congress to repeal it.  A bill is pending in the House with about 100 co-sponsors intended to do that, although nobody is predicting it will come to a vote in this session.

Second, as to when the decision goes into effect: normally that happens upon the official entry of the judgment, but in this case, GLAD has announced that it reached an agreement with the Justice Department to stay the effect of the ruling while the Justice Department decides whether to appeal.  If no appeal is filed within the 60 day deadline, the decision goes into effect.  If an appeal is filed, it is likely that the stay will continue pending the conclusion of the appellate process.

In a Q&A posted on its website, GLAD explains the rationale for this:  "We agreed to a stay for two reasons.  First and foremost, it is in our clients' best interest.  They want the certainty of knowing that their awarded Social Security payments, health insurance costs, or tax refunds are not potentially subject to repayment to the government.  Only a final victory ensures that.  Secondly, we think the stay actually provides clarity for married couples around the country who are looking at their own situations and wondering whether the Gill decision allows them to apply for Social Security benefits, for example, or sponsor their spouse for citizenship.  The answer, even without a stay in Gill, is: no, not yet."

On August 18, Judge Tauro entered an Amended Judgment in the record, spelling out in detail the relief to which each plaintiff in the Gill case is entitled when/if the jduge's decision goes into effect.  From the wording of the judgment, it appears that the relief that is ordered in this case is very particular to the plaintiffs. There is no general statement that the various governmental defendants are enjoined from continuing to enforce Section 3 of DOMA in general, but rather that they are enjoined not to enforce it against these named plaintiffs in considering their applications for various federal benefits.  One assumes, however, that if the court's judgment goes into effect, Section 3 will be effectively unenforceable in Massachusetts and, perhaps (a question yet to be answered) with respect to any same-sex marriage entered in Massachusetts, even though the couple resides in some other jurisdiction?

The text of the amended order is available on GLAD's website, together with the Q&A.  A quick search of the Massachusetts Attorney General's website this morning showed no new references to the case, the latest being a press release hailing the court's opinion on the merits from July.  So I am not certain what the status is of the Commonwealth of Massachusetts' case in terms of entry of judgment, stay, or appeal.  The Commonwealth's complaint was focused on particular specific ways that Section 3 affected the ability of the Commonwealth to administer its programs without violating its state constitutional duty to treat same-sex marriages the same as different-sex marriages.  Thus, it seems likely that narrowly tailored relief in the state's case would focus on blocking the application of Section 3 as it might affect state programs.

Thus, it remains unclear whether Judge Tauro's decisions, if not appealed, would have any effect outside of Massachusetts.  Further details would be most welcome.

Comments

[Bill]

Also from GLAD's Q&A: "If the Department of Justice decides to appeal, it gives us the chance to argue in front of a higher court with a broader reach. As it stands, the rulings for our plaintiffs do not affect married same-sex couples outside of Massachusetts. Further proceedings provide an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." Note the "outside of MA." Also GLAD's attempt to take pressure off the administration by welcoming an appeal.

[Art Leonard]

This is test case litigation. The plaintiffs are the vehicle to get the legal issue before the courts. An unappealed trial court decision may be good for the plaintiffs and perhaps other same-sex marriage couples in Massachusetts, but for this to be successful test-case litigation, it has to be decided by an appellate court.

Trial court decisions are binding on the parties but not binding precedents on others. Only an appellate ruling can be a precedent that decides other cases.

As for pressure on the administration, how does that cut? The biggest pressure on them would be to get them to push the bill through Congress so that Section 3 is repealed and the issue is moot. But short of that, I think we WANT an appeal.

[Bill]

I think we agree. The pressure on the admin not to appeal (prominent on some blogs) is coming from people who don't get the point of the litigation which is, as GLAD says, to get to a court with "broader reach."

I've just been surprised at how much commentary on Tauro's judgment missed that GLAD statement, buried in their FAQ.

[Peter]

As for the Commonwealth's case, judgment was entered on August 12th and there is a pending unopposed motion to stay.