NEW YORK — The Defense of Marriage Act is set for a showdown in a federal appeals court later this month between those who say it is right for the government to speak of marriage only in heterosexual terms and those who say doing so discriminates against same-sex unions.
In June, U.S. District Judge Barbara Jones in Manhattan declared the 1996 law unconstitutional, prompting former Attorney General John Ashcroft, among others, to submit to the 2nd U.S. Circuit Court of Appeals written arguments supporting the statute. Others have written legal briefs opposing it, including a filing by the U.S. Justice Department saying the law must go because it was "motivated in substantial part by disapproval of gay and lesbian people."
Oral arguments are scheduled for Sept. 27.
Already, the 1st U.S. Circuit Court of Appeals in Boston has affirmed a federal judge's 2010 ruling against the law. Two federal judges in California and one in Connecticut also have ruled the law unconstitutional.
Jones' ruling came after Edith Windsor sued the government in November 2010 after she was told to pay $363,053 in federal estate tax after her spouse of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.
Jones said the law's attempts to define marriage "intrude upon the states' business of regulating domestic relations."
The law was passed by Congress and signed by President Bill Clinton after the Hawaii Supreme Court issued a ruling in 1993 making it appear Hawaii might legalize gay marriage. Since then, many states have banned gay marriage, while eight states have approved it, led by Massachusetts in 2004 and continuing with Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland and Washington state. Maryland and Washington's laws aren't yet in effect and might be subject to referendums.
In February 2011, President Barack Obama and Attorney General Eric Holder instructed the Department of Justice to no longer defend the Defense of Marriage Act.
In arguments submitted to the 2nd Circuit last month, former attorneys general Edwin Meese III and Ashcroft called that decision "unprecedented in our nation's history," because it did not involve separation of powers concerns.
"The administration's change of position marks an unprecedented and ill-advised departure from over two centuries of Executive Branch practice," they wrote. "Historically, the president's constitutional obligation to 'take care that the laws be faithfully executed' has been understood to include the vigorous defense of acts of Congress when they are challenged in court."
They added that the switch in position "fails to afford due respect to Congress and threatens to undermine the proper functioning of the judicial process."
That sentiment was supported by arguments submitted by the act's defenders before the appeals court: the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
"It is no small step for a federal court to conclude that a coordinate branch of the federal government has acted irrationally," warned the Bipartisan Legal Advisory Group in its brief.
The group's lawyers wrote that Congress did not invent the meanings of "marriage" and "spouse" when it enacted the law but "merely reaffirmed what Congress has always meant — and what courts and the Executive Branch have always understood it to mean — in using those words: A traditional male-female couple."
But even that group isn't united: The two Democrats in the five-member group — Nancy Pelosi of California and Steny Hoyer of Maryland — joined 145 other members of the House in submitting a brief opposing the act.
Lawyers for Windsor called the Defense of Marriage Act unprecedented.
"Never before had the federal government refused to defer to a state law determination on a class of citizens who are married," they wrote. "And DOMA's impact is sweeping: by defining marriage for purposes of federal law to exclude gay men and lesbians, DOMA denies married same-sex couples access to programs and benefits under more than 1,000 federal laws and regulations."
The lawyers noted that the government had already come a long way: When Windsor was in college, federal law prohibited companies that had contracts with the federal government from employing gay men or lesbians. They said the law Jones ruled unconstitutional "does in fact promote disapproval of gay men and lesbians."
That argument was supported in a brief by the Justice Department, which said its review of the official legislative record that led to the law showed not only that it was motivated largely by disapproval of gays and lesbians but that it identifies no governmental interest that justifies the law's "differential treatment of same-sex couples who are legally married under the laws of their states."
The Justice Department also said "one of the goals of DOMA was to provide gay and lesbian people with an incentive to abandon or at least to hide from view a core aspect of their identities, which legislators regarded as immoral and inferior."