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Massachusetts leads fight on right to marry

Readies its case that US law hurts same-sex couples

Jonathan Alcorn/Reuters

Supporters cheered in February after California’s ban on gay marriage was overturned. Another federal judge also ruled against the US Defense of Marriage Act.

Massachusetts will once again take center stage in the national debate over same-sex marriage as the state becomes the first to go before a United States appeals court to challenge a federal law that defines marriage as a union only of a man and a woman.

The US Court of Appeals for the First Circuit in Boston on Wednesday will hear two cases that challenge the 1996 Defense of Marriage Act: The first is a lawsuit brought by 17 local plaintiffs who say it deprives them of the federal benefits that other married couples receive. The second, brought by the state, alleges the Marriage Act forces Massachusetts to discriminate against gay couples when the state’s highest court has already declared their marriages constitutionally protected.

“It’s a civil rights issue,’’ Massachusetts Attorney General Martha Coakley said in an interview Friday. “It discriminates against our citizens, and frankly we can’t see any rational basis for the statute.’’

Nearly a decade after Massachusetts became the first state in the country to legalize same-sex marriage, gay-rights supporters say a growing national recognition of such marriages gives them a solid footing as the debate begins to make its way through the federal appellate court system.

Supporters of the Defense of Marriage Act argue, however, that it protects other states from having to accept same-sex marriage if their own voters disagree with it. They say that any attempts to repeal the act should be through the electoral process.

While some states have approved same-sex marriages, 28 have passed constitutional provisions since 1998 defining marriage as a union only of a man and a woman.

Another 10 have statutory provisions defining marriage as between a man and a woman, though some of them may have provisions for civil unions, according to the National Conference of State Legislatures. Minnesota and North Carolina are set to vote in the fall on constitutional amendments banning gay marriage.

“The debate over the proper definition of marriage is alive and well in the democratic process,’’ lawyers for the US House of Representatives, which is defending the act, argued in court records.

Several advocacy groups, including the National Organization for Marriage, and some religious institutions, as well as other states, submitted their own court arguments defending the act.

“The reason the federal government got involved was the threat of same-sex marriage was upon us,’’ said Kris Mineau, president of the Massachusetts Family Institute, which filed arguments with the appeals court. “The storm was brewing, and states were seeking protection. They didn’t want to be forced to recognize a same-sex marriage from another state.’’

At issue is whether the federal government can create its own definition of marriage. Massachusetts said the federal government has historically left it to the states, even when states disagreed on controversial issues such as interracial marriage.

The lawsuits allege that by defining marriage as a union of a man and a woman, the federal government has created a second-tier classification for same-sex couples that deprives them of basic federal benefits, such as the ability to file a joint tax return.

A US District Court judge ruled in 2010 for both Massachusetts and the local plaintiffs that the act is unconstitutional, the first ruling of its kind. The federal government appealed, and the cases have been combined - leading to this week’s arguments.

The act was first enacted in 1996 under President Clinton. Lawmakers were wary of a Hawaii court decision that could have enabled that state to recognize same-sex marriages. Hawaii lawmakers later restricted marriages to unions between a man and a woman, though it gave same-sex couples some civil protections.

Massachusetts was the first to recognize the rights of same-sex couples to marry, in a landmark Supreme Judicial Court ruling in 2003, and the challenge of the federal law was the obvious next step in the legal process.

As the debate continues at a national level, gay-rights advocates say they have seen a growing recognition of the rights of same-sex couples to marry, as the public has seen that gay couples have raised children and that their marriages succeeded.

At least seven other states have recognized gay marriage, and three others could approve legislation acknowledging the right by the end of this year.

Meanwhile, in 2011, the United States abandoned its “don’t ask, don’t tell’’ policy regarding military members’ sexual preferences - a sign, supporters said, that the general public is becoming more open to gay rights.

National polls indicate growing support for the right to marry. And the courts have also upheld the rights of same-sex couples: A US District Court judge in California recently struck down the Marriage Act in a ruling similar to the one US District Court Judge Joseph L. Tauro made in Boston in 2010.

Supporters of same-sex marriage say the strongest argument for their case was the US Department of Justice’s declaration last year that it could not successfully defend the 1996 act before the appeals court using a heightened standard of scrutiny - the standard that Tauro set in his decision.

The US House of Representatives has continued with the appeal even under the higher standard.

Coakley and the Gay and Lesbians Advocates and Defenders, which is representing the other parties in the case, maintain they have a clear legal argument, saying in court records that the 1996 law “is rooted in animus towards gays and lesbians, and it cannot survive even the most lenient standard of review.’’

“This is really a case that’s extremely important to people who are married, because [the act] says their marriage is different than everyone else’s,’’ said Mary Bonauto, the lead lawyer in the case, who also represented the same-sex couple at the center of the Massachusetts Supreme Judicial Court case.

One of the plaintiffs is Dean Hara, widower of US Representative Gerry E. Studds, the first openly gay member of Congress. Hara recalls Studds opposing the 1996 act.

Studds left Congress, and he and Hara married soon after the Massachusetts court decision.

But after Studds died in 2006, Hara was denied the federal benefits that an opposite-sex spouse would have received: a Social Security death benefit, health care under the federal plan, and a share of his partner’s pension.

Hara said in an interview Friday that Studds had long fought for individual rights, and he is doing the same.

“He was a public servant that worked 24 years for his country, and paid as much into the country as anyone else,’’ Hara said. “We are a long way from marriage equality. But the tide will turn. This will continue. I think we’ve seen this is not change that’s going to go away.’’

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.

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