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    US law on marriage is argued in court

    First state appeal to reach US judges

    Lawyers for Massachusetts and for gay-rights advocates urged a US appeals court Wednesday to strike down a federal law that defines marriage as a union only of a man and a woman, calling it discriminatory and based on “animus’’ toward same-sex couples.

    But a lawyer for the US House of Representative’s Bipartisan Legal Advisory Group, a unique group appointed to defend the law, told the three-judge panel that the law was meant to preserve what he called the traditional definition of marriage and that it would have no effect on which marriages Massachusetts chooses to recognize. The lawyer, a former US solicitor general, Paul Clement, said any change should come through the democratic process.

    The back and forth exchange lasted an hour before the US Court of Appeals for the First Circuit, the first time a federal appeals court has heard a state’s challenge to the 1996 Defense of Marriage Act.


    Massachusetts Attorney General Martha Coakley sat in the front row as the three appeals court panelists peppered lawyers with probing questions on a divisive issue that probably will go before the US Supreme Court or see Congress vote on whether to amend the law.

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    Coakley said later outside the courthouse, while surrounded by staff lawyers and representatives from Gay and Lesbian Advocates and Defenders, that “It’s about fairness, it’s about what Massachusetts has already decided.’’

    “This should be the law here, and the federal government in this instance has no business setting two sets of citizens here, two sets of classes,’’ Coakley said.

    At issue is the 1996 law, known as DOMA, which defines marriage as a union of a man and a woman and which consequently limits federal benefits such as Social Security benefits and the ability to file joint taxes to heterosexual couples.

    Clement, who recently argued against President Obama’s health care law before the US Supreme Court, told the panel in Boston that Congress passed the act in reaction to a Hawaii state court decision at the time that could have enabled same-sex couples to marry in that state. The federal government wanted to preserve what Clement called the traditional definition of marriage in the implementation of its programs, such as Social Security benefits.


    He said that the federal government has the authority to decide how to administer its programs and that the law was passed in 1996 on the “rational’’ consensus of lawmakers. Any further debate should be in Congress, not the courts, he said.

    But lawyers for GLAD, which represents 17 plaintiffs, and for Massachusetts argued that the law has discriminated against legally married same-sex couples since Massachusetts began approving their marriages in 2004 and that it forces the state to discriminate against them in administering federal programs. Under the law, for instance, the same-sex spouse of a veteran could not be buried in one of the state’s two federally funded veterans’ cemeteries.

    “It requires us to live with two distinct and two unequal versions of marriage,’’ Maura Healey, assistant attorney general, told the panel.

    Mary Bonauto, the lawyer for GLAD who handled the Massachusetts Supreme Judicial Court case that legalized gay marriage, told the panel that the federal government has historically let states define marriage, even when states disagreed on controversial issues such as interracial marriage.

    “What is the justification for singling out one group for different treatment?’’ she said, citing studies showing that a child is raised no differently in a same-sex marriage and that same-sex marriages have not eroded the family structure.


    The appeals court is being asked to resolve two legal questions: is the federal government interfering with Massachusetts’ sovereign right to define marriage, and does that interference discriminate against same-sex couples under equal protection laws.

    The legal questions would be restricted to legally approved same-sex marriages in Massachusetts, though the court’s decision could influence the benefits for same-sex couples in other states that have approved gay marriage.

    Stuart F. Delery, an attorney for the United States executive branch, told the panel that Obama and the Department of Justice could not defend the law using a legal test of heightened scrutiny, a standard he said is needed because the law applies to sexual preference.

    He acknowledged that the US Supreme Court has not yet decided whether the standard for heightened scrutiny should indeed apply to sexual preference and asked the appeals court to take up the issue.

    But Delery told the court that the history of the law’s passage necessitated the heightened standard of scrutiny for anything of suspicious motivations.

    “It was motivated in animus towards gay and lesbian couples,’’ he said, noting the title, “Defense of Marriage Act.’’ “It was a defense against something, and that something was same-sex couples.’’

    Milton J. Valencia can be reached at Follow him on Twitter @MiltonValencia.