It’s been nine years since the BBA staked out its position on same-sex marriage in its amicus brief filed in the landmark Goodridge v. Dept. of Public Health. The BBA reiterated its position on same-sex marriage when the organization signed onto an amicus brief last week. The latest brief – filed in the US Court of Appeals for the First Circuit – challenges the federal Defense of Marriage Act (“DOMA”). The BBA joined 30 other groups – the ACLU, the National LGBT Bar Association, the Human Rights Campaign and the Equal Justice Society to name just a few – on this brief that involved a constitutional challenge to DOMA.
Section 3 of DOMA provides that for the purposes of all federal laws, “marriage” and “spouse” are defined to exclude married same-sex couples, even if those marriages are legal under state law. In 2004, Massachusetts became the first state in the country to end the exclusion of same-sex couples from civil marriage. The BBA has approached this purely as an issue of civil rights and universal access to justice. Consistent with the BBA’s commitment to ensuring equal protection for all people, the amicus brief argues that classification based on sexual orientation must be subjected to heightened scrutiny.
The legal challenge to DOMA in the two federal cases, MA v. U.S. Dept. of Health and Human Services and Nancy Gill v. Office of Personnel Management, sparks a seminal moment in the evolution of the same-sex marriage issue. The BBA continues to lead on the issue and believes that it can be uniquely persuasive as a legal organization through filing amici.
Back in February 2011, as discussed in Issue Spot, the Obama Administration decided to no longer defend DOMA – leading Massachusetts Attorney General Martha Coakley to file a lawsuit challenging the law that bars federal recognition of same-sex marriage. In the absence of the Department of Justice defending the law, the Bipartisan Legal Advisory Group of the House of Representatives announced it would intervene to provide the defense. What has followed has been a protracted process.
The fate of DOMA is now in the hands of the US Court of Appeals for the First Circuit. DOMA should be found unconstitutional. We look forward to the day when Massachusetts does not belong to a small list of states recognizing same-sex marriage, but rather is part of a nation that fully supports the idea of equality under the law.
Government Relations Director
Boston Bar Association