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.