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May 31, 2012

A federal appeals court in Boston found on Thursday that a U.S. law defining marriage as a union between a man and a woman unconstitutionally denies federal benefits to lawfully married same-sex couples in a ruling that promises to push the issue of gay marriage to the U.S. Supreme Court.

The ruling on the 1996 law, the Defense of Marriage Act, marked a victory for gay rights groups and U.S. President Barack Obama, whose administration announced last year it considered the law unconstitutional and would no longer defend it.

In its 3-0 ruling, a panel of the U.S. Court of Appeals for the 1st Circuit concluded that the law discriminates against gay couples. Eight of the 50 U.S. states permit gay marriage, including Massachusetts, which became the first in 2004, and Maryland, which became the most recent in March.

"Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," Judge Michael Boudin wrote for the three-judge panel.

The issue of gay marriage is an emotional and divisive one in the United States. Polls show U.S. public support of gay marriage rising.

Obama on May 9 said he believes same-sex couples should be allowed to marry, marking the first time a U.S. president publicly expressed support for gay marriage. Republican activists and conservative Christian leaders condemned Obama's stance.

Two of the three judges who made Thursday's ruling were appointed by Republican presidents and the third by a Democrat.

White House spokesman Jay Carney said the ruling "is in concert with the president's views" that the law is unconstitutional. Obama is seeking re-election on November 6.

Mitt Romney, who has clinched the Republican nomination to challenge Obama, opposes gay marriage, saying marriage should be limited to a union between one man and one woman.

Gay rights advocates hailed Thursday's ruling while conservatives opposed to same-sex marriage condemned it.

"For the first time, a federal appeals court has recognized that our Constitution will not tolerate a law that forces the federal government to deny lawfully married same-sex couples equal treatment. The writing is clearly on the wall for the demise of this unjust and indefensible law that hurts real families," said Joe Solmonese, president of the gay rights group Human Rights Campaign.

Plaintiffs, including seven married same-sex couples and three widowers, said the law, which prevents them from filing joint federal tax returns or collecting survivor benefits from the Social Security retirement program, denied them equal protections guaranteed under the U.S. Constitution.

Bette Jo Green, one of the plaintiffs in the case, welcomed the decision. Green, 70, has been married to Jo Ann Whitehead, 70, since 2004.

"How thrilling it is for us to know that the court believes in protecting our right to Social Security benefits as with all the other married couples in the country," Green said.

"We're glad to know we fall into the same class as everyone else. We're no longer second-class citizens," added Jonathan Knight, 32, married to Marlin Nabors, 34, since 2006.


Mary Bonauto of the Massachusetts advocacy group Gay and Lesbian Advocates and Defenders, who served as the lead attorney for the 17 plaintiffs, said she expects this case now to go before the U.S. Supreme Court, the highest court in the country.

"We think this is a case that really could appeal to all members of the court because it is not only a double standard ... this law is also a real outlier because it inserts Congress into an area that states govern," Bonauto said.

The 1st Circuit panel recognized that many Americans believe marriage to be a union between a man and a woman. But the panel concluded that federalism permits diversity of governance based on local decisions, and that choice also applied to states' decisions to legalize same-sex marriage.

The panel said the ruling would not take effect until the Supreme Court has had an opportunity to review the law. The plaintiffs' right to receive tax and Social Security benefits will remain on hold pending any appeal.

The Supreme Court has never said that the U.S. Constitution requires states to permit same-sex marriages, the ruling noted. Therefore, the current case was limited to arguments "that do not presume or rest on a constitutional right to same-sex marriage," the panel said.

The ruling also did not address another provision of the law that says that one state does not have to recognize gay marriages performed in states that permit it. "Today's ruling just means that the federal government has to recognize states' marriages. If a married couple from Massachusetts wants to move to Texas, Texas doesn't have to recognize their marriage," said Paul Smith, a lawyer for the plaintiffs.

Kris Mineau, president of the Massachusetts Family Institute, criticized the ruling as an attack on the traditional definition of marriage.

"For a Massachusetts-based court to just audaciously proclaim that the federal government is wrong and has to recognize a unique social experiment in Massachusetts for the purpose of providing benefits is bizarre and a violation of the principles of our federalist system," Mineau said.

Dale Schowengerdt, a lawyer for the Alliance Defense Fund, a Christian advocacy group that has defended California's gay marriage ban in court, added, "Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too."

In a companion case also on appeal, Massachusetts Attorney General Martha Coakley argued that Congress overstepped its authority and violated the 10th Amendment of the Constitution in passing the law because it undermined states' abilities to recognize marriage equality.

"It is unconstitutional for the federal government to create a system of first- and second-class marriages," Coakley said in a statement.

Lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) had defended the 1996 law.

A federal judge in Massachusetts declared a key section of the law unconstitutional in 2010, and the appeals court agreed.

Among the plaintiffs is Dean Hara, the widower of Gerry Studds, a former U.S. congressman who died in 2006. Studds, the first openly gay member of Congress, and Hara were married one week after same-sex marriages became legal in Massachusetts. Hara was not eligible to receive the pension provided to surviving spouses of former members of Congress.

A California federal judge has found the law unconstitutional for denying federal benefits to same-sex couples. Another federal judge in San Francisco reached the same conclusion in a case currently on appeal before the 9th U.S. Circuit Court of Appeals.

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Posted: Thursday May 31, 2012, 10:35 pm
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