Lawyers arguing DOMA appeal Wednesday
When a panel of three judges on a federal appeals court hears arguments against the federal Defense of Marriage Act, three openly gay lawyers will argue the law is unconstitutional. Opposing them, one straight attorney.
Legal gay icon Mary Bonauto will once again make a case for equal marriage, arguing on behalf of seven gay couples and three widowers, all married in Massachusetts after the 2003 Goodridge v. Department of Public Health decision.
While the state affords them all the rights, benefits, protections, and responsibilities of legal wedlock, the federal government, under DOMA, denies them more than 1,000 federal programs, benefits and legal protections afforded to opposite-sex couples.
Perhaps best known for winning the 2003 Massachusetts Supreme Judicial Court ruling in Goodridge, Bonauto is Gay & Lesbian Advocates & Defenders’ civil rights project director.
Goodridge was the first state Supreme Court victory for advocates of the freedom to marry for gay and lesbian couples.
Before Goodridge, Bonauto and two other attorneys won an important 1999 decision in Baker v. State of Vermont, a ruling that prompted lawmakers there to adopt what was then the ground-breaking option of civil unions. Civil unions afforded same-sex couples all the rights, benefits, and responsibilities of marriage, but not the word marriage. In 2009, Vermont lawmakers made same-sex marriage legal.
A May 2004 New York Times Magazine profile on Bonauto likened her to the late U.S. Supreme Court Justice Thurgood Marshall, who, before becoming a judge, argued before the high court in the historic case of Brown v. Board of Education, which ended racial segregation in public education.
A native of Newburgh, N.Y., Bonauto is a graduate of Hamilton College in Clinton, N.Y., and holds a law degree from Northeastern University, located in Boston.
Bonauto and her wife Jennifer Wriggins reside in Portland, Maine, where they are raising twin daughters.
Just as GLAD won a favorable same-sex marriage ruling in the federal district court in Boston in July 2010, so did and the Commonwealth of Massachusetts.
In a suit brought by the state’s attorney general, Maura T. Healey, chief of the Massachusetts Attorney General Office’s Bureau of Public Protection and Advocacy, argued that DOMA infringed on Massachusetts sovereignty, trespassing on the state’s ability to determine eligibility for issuing marriage licenses.
During oral arguments, attorney Healey led a full-court press. In strong words, she told the U.S. District Court judge that DOMA “forces Massachusetts to engage in a kind of invidious discrimination.”
How? By denying same-sex married couples of the same benefits received by opposite-sex couples—or risk losing federal aid.
Even worse, DOMA is “animus-based national marriage law,” said Healey. She contended that the law infringes on Massachusetts sovereign authority and “forces the state to discriminate against its own citizens.”
Like Bonauto, Healey is no stranger to high profile gay litigation. Prior to joining the Attorney General’s Office, Healey was an attorney at the Boston office of WilmerHale, a prestigious law firm. There, she provided counsel to the Servicemembers Legal Defense Network (SLDN) in a 2006 case, Cook v. Rumsfeld, that challenged the constitutionality of the armed forces’ ban on openly gay service, a federal law and military policy known as “Don’t Ask, Don’t Tell.”
Before law school, Healey, a New Hampshire native, played women’s basketball for Harvard College. There, as point guard, she captained the school to an Ivy League championship. Afterwards, Healey went on to play professional ball in Europe. She is a 2006 inductee into the New England Basketball Hall of Fame. She holds a law degree from Northeastern.
For the April 4 arguments, GLAD’s and the attorney general’s lawsuits have been consolidated. They are referred to as Gill v. Office of Personnel Management.
When the cases were first heard in U.S. District Court, the Obama Department of Justice was still defending DOMA. But last year, DOJ said it would no longer argue the law is unconstitutional.
This time, the Department of Justice will be arguing against DOMA. And it will do so in the person of openly gay attorney Stuart Delery, promoted recently to serve as DOJ’s Acting Assistant Attorney General for the Civil Division.
Like Bonauto and Healey, Delery has experience with high profile gay litigation. While a partner at WilmerHale in Washington, D.C., he was pro bono counsel of record for the Servicemembers Legal Defense Network’s unsuccessful lawsuit in the First Circuit that challenged the military’s “Don’t Ask, Don’t Tell.”
A graduate of the University of Virginia, Delery earned a law degree at Yale. He clerked for Supreme Court Justices Sandra Day O’Connor and Byron R. White.
Delery and his longtime partner, Richard Gervase, are fathers of two sons, according to the gay newspaper Metro Weekly of Washington, D.C.. Both parents are active in Rainbow Families DC, a non-profit organization for LGBT parents and prospective parents in the Washington, D.C. metropolitan area.
DOJ is no longer defending DOMA, but the Bipartisan Legal Advisory Group (BLAG) of the U.S. House hired attorney Paul Clement, former Solicitor General for President George W. Bush, to do so.
At that time, Clement was a partner at the law firm of King & Spaulding. When the law firm withdrew from the DOMA case, Clement resigned and joined another smaller firm, saying, “Representation should not be abandoned because the client’s legal positioning is extremely unpopular in certain quarters.”
“Defending unpopular positions is what lawyers do,” said Clement, to Washington Post columnist Jonathan Capehart. “The adversary system of justice depends on it, especially in cases where passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
A Wisconsin native, Clement, a graduate of Georgetown University, holds a law degree from Harvard. He clerked for Associate Justice Antonin Scalia of the U.S. Supreme Court.
When Clement arrives in Boston to defend DOMA, he will be fresh off an appearance this past week before the U.S. Supreme Court in landmark litigation seeking to overturn the Affordable Care Act. Clement will also be defending DOMA in other cases.