A Massachusetts appeals court will hear a case challenging the Defense of Marriage Act, which defines marriage as between a man and a woman, this week.
A three-judge panel of the First Circuit Court of Appeals in Boston, Mass., will hear arguments on DOMA, which prevents the federal government from recognizing same-sex marriage, on Wednesday, according to The Associated Press.
A federal district court in Massachusetts ruled in July 2010 that a key section of the law was unconstitutional in lawsuits filed by Attorney General Martha Coakley and the Gay & Lesbian Advocates & Defenders (GLAD). Judge Joseph Tauro declared the law unconstitutional saying it hinders the right of a state to define marriage and denies married gay couples several federal benefits given to heterosexual married couples.
The court in Boston will hear an appeal by the Bipartisan Legal Advisory Group, convened by House Speaker John Boehner after Obama announced last year that the U.S. Department of Justice would no longer defend the constitutionality of DOMA.
While Obama does not want to defend DOMA, he has declared that his personal views on gay marriage are still evolving and has not taken a clear stand on the issue. However, there is now pressure on the president to support it, a decision he would like to avoid until after the presidential election.
Same-sex marriage is already an explosive issue in a few states that have it on their ballots in November. And some influential Democrats, including House Minority Leader Nancy Pelosi and more than 20 Senate Democrats, are pushing for inclusion of gay marriage in the party's election platform to be adopted at the Democratic National Convention in early September. However, Obama's support of gay marriage might help strengthen Republican front-runner Mitt Romney, who is opposing same-sex marriage.
Lawyers on both sides are prepared to make their case on Wednesday.
"We essentially have to keep two sets of books – you're married for state purposes, but you're not married for federal purposes. It requires us, in a way, to discriminate against our citizens because so many federal benefits are distributed through state agencies," Coakley was quoted as saying.
GLAD attorney Mary Bonauto will argue on behalf of seven gay couples and three widowers, all married in Massachusetts, the first state in the nation to legalize gay marriage. "Massachusetts made this decision to marry these people, and they are married," Bonauto was quoted as saying. "Now they come before the federal government as married people, as anybody else in Massachusetts does, but only the same-sex couples are denied recognition under federal law."
Bipartisan group's lawyer Paul Clement says the call for declaring the law unconstitutional seems to suggest that Congress cannot define marriage and must adopt the state definition. "Congress has multiple rational bases for preferring a uniform federal definition over a patchwork, so DOMA should survive unless there is something categorically different about marriage. There is not," Clement wrote in legal briefs filed in court. "Congress has ample power to define the terms used in federal statutes to apportion federal benefits and burdens. Any other rule would turn the Supremacy Clause and our entire constitutional structure upside down."