Stage Is Set for April 4th Arguments in First Circuit DOMA Challenge Appeal

Posted by Chris Geidner
March 26, 2012 6:10 PM |

As the U.S. Court of Appeals for the First Circuit gears up to hear appellate arguments next week in two cases challenging the federal definition of marriage contained in the Defense of Marriage Act that excludes same-sex couples, the "who's who" of the arguments are getting sorted out as the court today announced the three-judge panel that will be hearing the case and the Department of Justice changed the lawyer who will be arguing the case for the federal government.

The panel of judges hearing next week's cases will consist of two judges appointed by Republican presidents and one Democratic appointee. Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judges Michael Boudin, appointed by President George H.W. Bush, and Juan Torruella, appointed by President Ronald Reagan, are slated to hear the arguments in the cases, Gill v. Office of Personnel Management and Massachusetts v. United States, at 10 a.m. April 4.

gill-letourneau-high.jpgThere will be no video cameras or live audio streaming of the arguments, but the court clerk's office tells Metro Weekly that the audio from the hearing will be posted on the court's website shortly after the hearing concludes.

Gay & Lesbian Advocates & Defenders, who brought the case in 2009 on behalf of Massachusetts same-sex couples who married under state law, won at the trial level in a decision announced in July 2010 by U.S. District Court Judge Joseph Tauro -- an appointee of President Nixon. Massachusetts Attorney General Martha Coakley (D), whose office filed a similar lawsuit based on additional claims, also won at the state level.

The Department of Justice had appealed the decisions to the First Circuit before President Obama determined in February 2011 that Section 3 of DOMA is unconstitutional and DOJ stopped defending the law in court challenges like Gill and Massachusetts.

Since that time, House Republicans, through the Bipartisan Legal Advisory Group (BLAG), have intervened in the challenges in order to continue the defense of the law.

On April 4, Paul Clement, the former top appellate litigator for President George W. Bush, will argue on behalf of BLAG to defend the law to the three-judge panel. Clement and his firm, Bancroft PLLC, have been hired by BLAG to defend the 1996 law. This week, Clement is appearing before the Supreme Court representing the state attorneys general who are challenging the constitutionality of the Affordable Care Act, or Obamacare.

Representing the federal defendants will be Acting Assistant Attorney General Stuart Delery, the out gay lawyer named to his new role as the head of the Civil Division of DOJ about a month ago. Prior to joining DOJ, Delery was a partner at the WilmerHale law firm. Tony West, now in the No. 3 spot at DOJ as the acting associate attorney general, had argued the DOJ's position on DOMA's marriage definition when he had served as assistant attorney general for the Civil Division of DOJ. Ben Kingsley initially had been slated to argue the appellate arguments on April 4.

Mary Bonauto, the GLAD lawyer who argued before the Massachusetts courts to obtain marriage equality in the Bay State, will be arguing for GLAD's plaintiffs. Maura Healey, the head of Massachusetts Attorney General's Civil Rights Division, will be arguing on behalf of Massachusetts.

[Photo: Plaintiffs Nancy Gill and Marcelle Letourneau. (Photo courtesy of GLAD.)]

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