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August 24, 2010

New Developments in GLAD's DOMA Challenge

Glad Last month's rulings against the federal Defense of Marriage Act by U.S. District Court Judge Joseph Tauro, in a pair of cases brought by Gay & Lesbian Advocates & Defenders and Massachusetts AG Martha Coakley, have raised questions as to whether the Obama administration will appeal, when the rulings will take effect, and if they will apply to couples outside the Bay State. Art Leonard reports:

Within the past few days, some answers have begun emerging.

First, a decision by a federal district judge does not take effect until the formal "entry of judgment" on the record. Although Judge Tauro issued his opinion in the Gill case on July 8 (which is now officially published at 699 F.Supp.2d 374, and most easily accessible to members of the public for free by using scholar.google.com), he did not enter his judgment formally until August 12. That set the clock ticking on the Justice Department's time to appeal, which runs for 60 days, so they have until early in October to file an appeal. So far, the Justice Department has not announced whether they will appeal, and presumably there is some internal debate going on. Judge Tauro's opinion pretty well shredded all of the arguments they made in defense of DOMA, and their case was undercut politically by the President's stated position that he considers DOMA to be discriminatory and urges Congress to repeal it. A bill is pending in the House with about 100 co-sponsors intended to do that, although nobody is predicting it will come to a vote in this session.

Second, as to when the decision goes into effect: normally that happens upon the official entry of the judgment, but in this case, GLAD has announced that it reached an agreement with the Justice Department to stay the effect of the ruling while the Justice Department decides whether to appeal. If no appeal is filed within the 60 day deadline, the decision goes into effect. If an appeal is filed, it is likely that the stay will continue pending the conclusion of the appellate process.

In a Q&A posted on its website, GLAD explains the rationale for this: "We agreed to a stay for two reasons. First and foremost, it is in our clients' best interest. They want the certainty of knowing that their awarded Social Security payments, health insurance costs, or tax refunds are not potentially subject to repayment to the government. Only a final victory ensures that. Secondly, we think the stay actually provides clarity 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. The answer, even without a stay in Gill, is: no, not yet."

On August 18, Judge Tauro entered an Amended Judgment in the record, spelling out in detail the relief to which each plaintiff in the Gill case is entitled when/if the jduge's decision goes into effect. From the wording of the judgment, it appears that the relief that is ordered in this case is very particular to the plaintiffs.

(Hat tip: Barrett Brick)

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