A closely watched constitutional challenge to the Defense of Marriage Act went before a U.S. appeals court for the first time Wednesday, setting the stage for a possible Supreme Court decision next year on whether legally married same-sex couples are entitled to equal benefits under federal law.
At issue is not whether gays and lesbians have a right to marry, but whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can marry.
Mary Bonauto, a lawyer for Gay & Lesbian Advocates and Defenders in Boston, argued that states have always set the laws on marriage and family. By refusing to recognize same-sex marriages in states such as Massachusetts, the 1996 federal law created "an across-the-board exclusion" to equal rights and benefits, she said.
Her clients include Nancy Gill, a U.S. postal worker, and her spouse, Marcelle Letourneau, who are raising two teenagers. The federal law forbids adding her spouse to her health care plan.
Bonauto urged the judges to strike down this discrimination as a violation of the Constitution's guarantee of equal protection of the law.
Gay-rights advocates said they were cheered by the tone of the argument. The three judges asked relatively few questions during the hourlong argument, but the most skeptical questions were directed to Paul Clement, President George W. Bush's solicitor general, who is defending the federal law on behalf of the House Republicans.
Clement said Congress had the right to maintain the traditional definition of marriage. "There are perfectly rational" reasons to uphold the law, and he urged the judges not to second-guess Congress. "Do you want to constitutionalize this issue, or leave it to the democratic process?" he asked in closing.