DOMA parties agree to stay

The Department of Justice has 60 days to appeal the district court's decision; an amended judgment is issued in Gill challenge.

An amended judgment released on Aug. 18 in Gill v. Office of Personnel Management, the Gay & Lesbian Advocates & Defenders (GLAD) challenge of the Defense of Marriage Act (DOMA) spells out exactly what the ruling means for Gill's seventeen plaintiffs, from tax reimbursement to spousal inclusion on insurance plans.

Meanwhile, both parties agreed to a sixty-day stay on the ruling (keeping it from going into effect) to allow the Department of Justice to appeal the ruling to a federal court.

District Judge Joseph L. Tauro ruled July 8 -- in two separate lawsuits, including Gill -- that Section 3 of DOMA, which limits legal recognition of marriage to unions between a man and a woman, is unconstitutional. The Federal District Court entered a formal judgment on Aug. 12.

"Normally it's just a matter of course [to file an appeal] when a federal statute is declared unconstitutional," Gary Buseck, GLAD's Legal Director, told Bay Windows. "It's part of the executive branch's job to defend the laws passed by Congress. So in the normal course of events, you wouldn't think anything of the fact that they would take an appeal from a judgment like this."

Buseck said that GLAD's legal team anticipates that the DOJ will file an appeal. "That's what we've been expecting," he said.

Mary L. Bonauto, GLAD's Civil Rights Project Director, said that the organization does not oppose the sixty-day stay. "We agreed to a stay for two reasons," Bonauto said in a prepared statement. "First and foremost, it is in our clients' best interest. They want the certainty of knowing that their Social Security payments, health insurance costs, or tax refunds are not potentially subject to repayment to the government. Only a final victory ensures that."

According to Buseck, the appeal of Tauro's decision is less a matter of if, and more a matter of when it will be filed. After an appeal, the decision will be sent to the United States Court of Appeals for the 1st Circuit, "where they will assess the correctness of Judge Tauro's decision -- which of course we think is correct -- and they get to take a look at all of the legal issues that Judge Tauro ruled on," Buseck said. "If they don't agree, then what they will do is reverse Judge Tauro's decision and that would be in effect to grant what had been the government's motion to dismiss and they will effectively say, well, DOMA's Section 3 as applied to all these plaintiffs is constitutional."

If the 1st Circuit Court of Appeals agrees with Tauro's decision, it will go into effect for the seventeen plaintiffs named in Gill. Unfortunately, the ruling applies only to those plaintiffs.

"[W]e think the stay actually provides for married couples around the country who are looking at their own situations and wondering whether the Gill decision allows them to apply for Social Security benefits, for example, or sponsor their spouse for citizenship," Bonauto said. "The answer, even without a stay in Gill, is: no, not yet."

Buseck said that other gay and lesbian couples who are interested in obtaining Social Security and other spousal benefits named in the challenge will have to wait, or file separately. "As far as the Gill case is concerned, everybody else really still has to wait. If the government takes an appeal, then really the fact is that nobody's getting anything yet," he said. "It's probably something that every individual has to consider on every issue and they may want to talk to tax advisers, they may want to talk to their immigration lawyers; everybody potentially has to decide whether they want to file for some benefit or ask to be treated as married for some purpose, so at this point we would anticipate that everybody would be still told no."

The amended judgment released on Aug. 18 includes the specificities surrounding Tauro's ruling in favor of GLAD and the seventeen plaintiffs. "If we lose on appeal, that judgment will be vacated," Buseck said, and the Office of Personnel Management, among other defendants, will not have to change their practices or reimburse the plaintiffs. "But if we win, and without any change in the judgment -- which I don't see there would be any reason -- then once again we have a judgment that's been affirmed by the 1st Circuit Court of Appeals."

If the Court of Appeals affirms Tauro's judgment, the government has the opportunity to ask the Supreme Court to review the ruling. "[W]hen we started this case, we thought this was a case that would not stop at the federal district court level, that it would go on to the United States Court of Appeals, we would get a ruling there, and we understood that if we got a ruling there in our favor, that it became the kind of case that the United States Supreme Court may well decide that it would hear," Buseck said. "Our belief [is] that we have a strong case that we can win in the United States Supreme Court."

A victory in the Supreme Court wouldn't immediately render Section 3 of the Defense of Marriage Act entirely moot; it would strip aspects of its legality for the seventeen plaintiffs named in Gill and, Buseck thinks, ultimately be stricken. "The question would be, what justification would there be for its application in any of the other myriad ways DOMA Section 3 impacts federal law in relation to legally married same-sex couples?" he asked. "We would think that the ultimate effect, not legally the result of a victory per se, but the victory itself plus what it would mean and what its logical consequence would be that DOMA Section 3 should end up being ineffective completely."

The Department of Justice must decide whether or not to file an appeal by Oct. 17 of this year.