BOSTON (CBS) – The Defense of Marriage Act (DOMA) is now in the hands of three federal judges after it went before the First Circuit Federal Court of Appeals in Boston Wednesday.

WBZ NewsRadio 1030’s Mark Katic reports.

Back in July 2010, Federal Judge Joseph Tauro ruled section 3 of DOMA was unconstitutional, saying it violates the Constitution’s guarantee of equal protection, the spending clause and the 10th Amendment, protecting state’s sovereignty.

Advocates for DOMA say rational basis should used in keeping it on the books.

Kris Meanu of Massachusetts Family Institute says, historically, that is the standard.

“The argument again is just the rational basis test. This, again, passes that test very clearly, just as the banning of polygamy passed the rational basis test in the history of our nation,” she said.

Attorney General Martha Coakley’s office and the Gay & Lesbian Advocates & Defenders (GLAD) argued DOMA should not be judged on rational basis but heightened scrutiny.

Coakley said DOMA creates two ways to define marriage – a state’s version and the federal, the latter denying federal benefits to gay couples, widows and children.

“And the argument was made very clearly today by both plaintiffs that all this statue does is discriminate frankly against same-sex couples and their children,” said Coakley.

Mary Bonauto, who represented  (GLAD), argued the separate definitions hurt people.

“Herb Bertus is 82, was with his partner and then spouse for 60 years, and then Herb goes to apply for survivor benefits and is told ‘Sorry, your marriage doesn’t count,'” said Bonauto.

There are at least four other lawsuits in other states challenging DOMA.  The White House and the Department of Justice said they would no longer defend it, calling it unconstitutional.

“You are supposed to act neutrally when it comes to the rights of people, but Congress couldn’t have been clearer that it disapproved of gay people and did not want them to have the same protections everyone else has,” said Bonauto.

Both sides agree DOMA’s constitutionality won’t be decided before it goes to the U.S. Supreme Court.

Comments (10)
  1. bees knees says:

    I love how people feel they have the right to decide who can marry whom. We are a judgmental people, aren’t we?

    1. Jesop says:

      And how long have governments done that? With or without religious commentary? C’mon, say it now… a very long time.

  2. Reality says:

    Marriage is between a man and a woman. Thats just the way it is and no one will change it. No matter how loud you scream.

    If gay couples want to provide benefits to each other then it will have to be named something else. Something more befitting of their strange situation.

    Maybe a “relationship for people who enjoy filthy parades?”

    1. bees knees says:

      according to you…………how’d you handle it when it used to be a “sin” for races to intermarry

      1. Jesop says:

        And how then to you respond to a genuine ethnic person who disagrees with you on the gay marriage issue? The Jim Crow laws and women’s suffrage comparisons don’t work because there are people from those movements still who are able to disagrees with you on this.

  3. vmcgrath says:

    Marriage is sanctioned by the government. If churches don’t want to marry people for various reasons that’s up to them. The government has the obligation to treat everyone as equals. Churches and religion can discriminate but governments shouldn’t have the right too.

  4. Curly says:

    How ironic that the Obama administration is turning to the same court to overturn a law that was passed by a duly elected congress and signed by a duly elected president that he said that SHOULD NOT overturn a law like that.

    1. massman says:

      You truly are a stooge, Curly.

      1. Jesop says:

        NO, he is pointing out simple hypocrisy whether you like the fact of who he is outing for it or not.

  5. SHOES THROWER says:

    The level of scrutiny was decided by Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)

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