Gill v. Office of Personnel Management
|Gill v. Office of Personnel Management|
|United States Court of Appeals for the First Circuit|
|Full case name||Nancy Gill and Marcelle Letourneau, et al.,
Office of Personnel Management, et al.,
|Prior history||699 F.Supp.2d 374 (D.Mass. 2010)|
|Subsequent history||Affirmed, Massachusetts v. U.S. Dept. Of Health, 682 F.3d 1 (1st Cir.); Petition for certiorari filed with the U.S. Supreme Court
|Section 3 of DOMA fails a less-deferential rational basis review on Equal Protection Clause claims; the Spending Clause and Tenth Amendment do not proscribe DOMA, but they do influence the analysis of DOMA's justifications under equal protection review.|
|Sandra Lynch, Chief Judge, Juan R. Torruella and Michael Boudin, Circuit Judges|
|Joined by||Torruella and Lynch|
|Fifth Amendment, Equal protection, Defense of Marriage Act|
Gill et al. v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012) is a United States Court of Appeals for the First Circuit decision that affirmed the judgment of the District Court for the District of Massachusetts in a lawsuit challenging the constitutionality of section 3 of the Defense of Marriage Act (DOMA), the section that defines the terms "marriage" as "a legal union between one man and one woman as husband and wife" and "spouse" as "a person of the opposite sex who is a husband or a wife."
The trial began on May 6, 2010, and was heard by District Judge Joseph Louis Tauro. On July 8, Tauro ruled section 3 of DOMA unconstitutional in a summary judgment. He later stayed the implementation of his decision pending appeal, and the Department of Justice (DOJ) filed an appeal on October 12, 2010.
In May 2012, the First Circuit Court of Appeals unanimously affirmed Tauro's ruling that section 3 of DOMA is unconstitutional. On June 29, the Bipartisan Legal Advisory Group (BLAG), an arm of the U.S. House of Representatives that is defending the suit, asked the Supreme Court to review the case. The DOJ did so on July 3 and the plaintiffs' attorneys did so on August 2. The petition for a writ of certiorari is currently pending before the United States Supreme Court.
Legal Proceedings 
On March 3, 2009, Gay & Lesbian Advocates & Defenders (GLAD) filed Gill in federal district court. The complaint argued that Section 3 of the Defense of Marriage Act (DOMA) should be found unconstitutional based on the Fifth Amendment, equal protection, and the federal government's historically consistent deference to state definitions of marriage. Section 3 defines the terms "marriage" and "spouse" for the purposes of federal law. It prevents the federal government from recognizing the marriages of same-sex couples who are legally married in their own states and restricts the federal government from granting such couples any federal benefits it provides to opposite-sex married couples.
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.
Tauro's decision found section 3 failed rational basis review. While the plaintiffs had asked Tauro to find that sexual orientation was a suspect class and therefore properly treated with strict scrutiny, Tauro's found that section 3 was unconstitutional on rational basis grounds. He did not address the question of whether heightened scrutiny was warranted.
Tauro issued a decision in Massachusetts v. United States Department of Health and Human Services, which found the same provision of DOMA was also unconstitutional on Tenth Amendment and Spending Clause grounds, on the same day he released his opinion in Gill.
Tauro entered his final judgment–a document developed in consultation with the parties to the case–on August 18 and granted a stay for the duration of the appeals process. Plaintiffs did not oppose the stay. Tauro originally entered his final judgment on August 12, but amended it on August 18.
First Circuit 
On January 14, 2011, the Department of Justice filed a single brief in the First Circuit Court of Appeals that defended DOMA in both Gill and the related case brought by the Commonwealth of Massachusetts. GLAD welcomed the appeal, saying it provided "the chance to argue in front of a higher court with a broader reach...[and] an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." On February 25, the Department of Justice notified the Court that it would cease to defend both cases. On April 18, 2011, leaders of the House of Representatives announced they had hired former United States Solicitor General Paul Clement to defend the case. On May 20, 2011, BLAG filed a motion asking to be allowed to intervene to defend DOMA section 3. GLAD and the Department of Justice did not oppose the request. The Court set a briefing scheduled to be completed by the end of September.
On June 21, 2011, plaintiffs filed a petition for en banc review to expedite the case by moving it more quickly through the judicial review process. On July 7, the DOJ supported that petition and argued that DOMA section 3 requires heightened scrutiny review and will fail to meet that standard. In its response filed the same day, BLAG agreed to the plaintiffs' request provided that other cases are consolidated with it, notably Massachusetts, and that the briefing schedule be revised. It said that "a definitive determination of Section 3's constitutionality by the Supreme Court seems all but inevitable. It is in all parties' interest that the Supreme Court resolve this issue sooner, rather than later." BLAG also requested consolidation with a third case, that of Dean Hara, one of the original Gill plaintiffs, whose case raised some distinct issues. In their briefs, the parties disputed whether there was a First Circuit precedent to the effect that sexual orientation as a classification is subject to intermediate scrutiny. In a tie vote, the First Circuit denied the request for en banc review.
GLAD filed its appellate brief on October 28, 2011. Responses from the DOJ and BLAG were filed December 1, 2011. Chief Judge Sandra Lynch and Judges Juan R. Torruella and Michael Boudin heard arguments in the case on April 4, 2012. On May 31, 2012, the First Circuit panel affirmed Tauro's ruling, unanimously finding section 3 of DOMA unconstitutional. Boudin concluded the decision by saying,
Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
The Court stayed enforcement of its decision in anticipation of an appeal to the Supreme Court.
Supreme Court 
On June 29, BLAG filed a petition for certiorari with the Supreme Court in this case and Massachusetts. The DOJ did so on July 3, while asking the Supreme Court to review Golinski v. Office of Personnel Management as well. The DOJ's petitions in Gill and Massachusetts raised the question of whether section 3 violates the Equal Protection Clause. In its reply to those petitions, Massachusetts proposed the additional questions of whether section 3 violates the Tenth Amendment and the Spending Clause. GLAD filed its response on August 2, supporting the request for Supreme Court review but disputing many of BLAG's contentions. As of March 10, 2013, the petition for a writ of certiorari is pending before the Supreme Court.
See also 
- Cook v. Gates, First Circuit decision concerning the "don't ask, don't tell" policy
- Same-sex marriage in the United States
- Gill and Massachusetts were decided in separate opinions in the District Court by the same judge on the same day and a single opinion in the Court of Appeals. Gill has a separate petition for certiorari pending before the Supreme Court as docket number 12-13.
- In Golinski, Pedersen, and Windsor, district courts held section 3 of DOMA unconstitutional. The first two are still pending in their respective Courts of Appeals, while in Windsor the district court decision has been affirmed by the 2nd Circuit Court of Appeals. However, a petition in each of the three has been filed in the Supreme Court to bypass the Courts of Appeals. They are before the Supreme Court under docket numbers 12-16, 12-231, and 12-63, respectively.
- "Defense of Marriage Act". United States Government Printing Office. September 21, 1996. Retrieved July 25, 2010.
- "Legal challenge of federal gay marriage ban begins". Christian Science Monitor. May 6, 2010. Retrieved May 6, 2010.
- "Federal Court Strikes Down DOMA Section 3" (PDF). GLAD. July 8, 2010. Retrieved July 10, 2010.
- "Feds Appeal Mass Rulings against U.S. Marriage Law". Boston Globe. October 12, 2010. Retrieved October 13, 2010.
- Dorf, Michael C. (July 12, 2010). "Cases on Arizona's Immigrant-Investigation Law and the Defense of Marriage Act Show the Cross-Ideological Interplay Between Federalism and Individual Rights". FindLaw. Thomson Reuters. Retrieved July 12, 2010.
- Goodnough, Abby; Zezima, Katie (March 2, 2009). "Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples". The New York Times. Retrieved November 6, 2009.
- Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010). Retrieved July 12, 2010.
- Lisa Keen and Advocate Editors (July 8, 2010). "Court Deals Blow to DOMA". The Advocate. Retrieved July 12, 2010.
- "Amended Judgment Entered in Gill DOMA Challenge". GLAD. August 19, 2010. Retrieved August 19, 2010.
- Keen, Lisa (August 18, 2010). "Clock now ticking on DOMA appeals". Bay Windows. Retrieved August 20, 2010.
- Geidner, Chris (January 14, 2011). "DOJ Files DOMA Defense in First Circuit Cases". Metro Weekly. Retrieved January 14, 2011.
- Massachusetts v. United States Department of Health and Human Services,Brief for the United States Department of Health and Human Services, et al. Retrieved July 18, 2012.
- "Frequently Asked Questions Regarding the Federal District Court's Rulings Overturning DOMA Section 3". GLAD. August 18, 2010. p. 4. Retrieved August 19, 2010.
- Massachusetts v. United States Department of Health and Human Services, Letter of Tony West, Assistant Attorney General, to United States Court of Appeals for the First Circuit, February 24, 2011. Retrieved February 28, 2011.
- Oliphant, James (April 18, 2011). "GOP taps ex-solicitor general to defend gay marriage law". Los Angeles Times. Retrieved May 12, 2011.
- Geidner, Chris (May 21, 2011). "House GOP Leadership Defends DOMA at the First Circuit". Metro Weekly. Retrieved May 23, 2011
- Massachusetts v. United States Department of Health and Human Services, Updated Briefing Schedules. Retrieved July 11, 2011.
- Massachusetts v. United States Department of Health and Human Services, Petition for Hearing en banc, June 21, 2011. Retrieved July 9, 2011.
- Massachusetts v. United States Department of Health and Human Services, DOJ's Response in Support of Petition for Initial Hearing en banc, July 7, 2011. Retrieved July 9, 2011.
- Massachusetts v. United States Department of Health and Human Services, Response of the Bipartisan Legal Advisory Group of the United States House of Representatives to the Gill Apellees' Petition for Hearing en banc, July 7, 2011. Retrieved July 9, 2011.
- Buseck, Mary L. (May 11, 2011). "Essay: At Least One Thing to Watch for in the First Circuit's DOMA Case". Harvard Civil Rights – Civil Liberties Law Review. Retrieved July 9, 2011. Text "first1Gary D. " ignored (help)
- "Response of the Commonwealth in Support of Certiorari, July 24, 2012". MetroWeekly. Retrieved July 24, 2012.
- O'Connell, Sue (November 2, 2011). "GLAD defends its win in Gill case". Bay Windows. Retrieved November 7, 2011.
- Massachusetts v. United States Department of Health and Human Services, DOJ Reply Brief. Retrieved December 8, 2011.
- Massachusetts v. United States Department of Health and Human Services, BLAG Reply Brief. Retrieved June 1, 2012.
- Geidner, Chris (April 4, 2012). "Federal Appeals Judges Consider Whether DOMA Is Constitutional in Historic Hearing in Boston". Metro Weekly. Retrieved April 4, 2012.
- Jeffrey, Don (May 31, 2012). "Defense of Marriage Act Unconstitutional, Appeals Court Says". Bloomberg. Retrieved May 31, 2012.
- Massachusetts v. United States Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012). Retrieved May 31, 2012.
- Johnson, Chris (June 20, 2012). "Boehner appeals DOMA cases to Supreme Court". Washington Blade. Retrieved June 29, 2012.
- Geidner, Chris (July 3, 2012). "DOJ Asks Supreme Court to Take Two DOMA Cases, Maintains Law Is Unconstitutional". Metro Weekly. Retrieved July 3, 2012.
- BLAG v. Gill, Response of the Commonwealth of Massachusetts in Support of Certiorari, p. i (Docket 12-13 and 12-15). Retrieved July 25, 2012.
- Geidner, Chris. "Republican Defense Of DOMA At Supreme Court Inaccurate, LGBT Group Argues". BuzzFeed Politics. Retrieved 2 August 2012.
- "Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill". SCOTUSblog. Retrieved 10 March 2013.
- First Circuit decision
- District Court decision (via Justia)
- Case Documents at GLAD
- Cook v. Gates (2008), earlier First Circuit opinion