Mary Bonauto

  • April 17, 2013
    Guest Post

    by Mary Bonauto and Paul Smith. Ms. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston. She was lead counsel in the Goodridge Massachusetts marriage case in 2003. Mr. Smith practices law in Washington, D.C. and argued the landmark Lawrence v. Texas gay rights case in the Supreme Court in 2003.


    We are co-counsel in two of the lawsuits challenging the Defense of Marriage Act that are now awaiting the Supreme Court’s ruling in United States v. Windsor. We principally chose “DOMA” as a litigation target because it so clearly denies gay and lesbian married couples the equal protection of the law guaranteed by the Constitution -- treating those married couples, and only those couples,  as though they are single for purposes of all 1,100-plus federal laws that take marital status into account. Significantly though, DOMA also involves a decision by Congress to second-guess the choices made by individual states that have married same-sex couples. By defining “marriage,” for all federal purposes, as limited to heterosexual unions, the law vitiates the States’ determination that married same-sex couples are married for federal purposes. The ability to say who is married has been the virtually exclusive domain of the states -- not Congress -- and is bounded only by other constitutional guarantees of due process and equal protection.

    We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge. In our briefs (as in Edie Windsor’s in the Supreme Court), the fact that states control marriage policy in this country is used to undercut the claimed justifications for discriminating based on sexual orientation that have been offered up by the law’s defenders.  Although neither we nor Windsor raised these claims, one state, the Commonwealth of Massachusetts, has its own pending case in which it argues that DOMA undermines state prerogatives to license marriages for same-sex couples as it does for others. A prominent amicus brief by conservative legal scholars filed in the Windsor case also sounded concerns that DOMA goes beyond defining marriage for federal purposes and interferes with state law. And at the Supreme Court arguments on March 27, Justice Kennedy and others asked questions suggesting they might agree that DOMA violates principles of federalism.

    But the prospect that the Court might give considerable weight to federalism in a decision invalidating DOMA has caused grave concerns among some progressive observers – most notably Linda Greenhouse in her recent column ominously named “Trojan Horse.” The primary concern she expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

  • November 9, 2010
    A group of same-sex couples is joining the battle to defeat the so-called Defense of Marriage Act (DOMA), which bars government recognition of gay marriages.

    The couples are represented by two separate federal lawsuits lodged on their behalf by the Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union, The New York Times reports.

    As The Times notes, "The two new lawsuits, which involve plaintiffs from New York, Connecticut, Vermont and New Hampshire, expand the attack geographically and also encompass more of the 1,138 federal laws and regulations that the Defense of Marriage Act potentially affects ...."

    The lawsuit brought by GLAD is its second one challenging the constitutionality of DOMA. In July, U.S. District Court Judge Joseph L. Tauro ruled in Gill et al v. Office of Personnel Management et al, that the law is unconstitutional on a number of fronts. Not only does the law violate the equal protection clause, it subverts the rights of states to regulate marriage, Tauro concluded. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," the judge wrote.

    GLAD's new lawsuit, Pedersen et al. v. Office of Personnel Management challenges the law's denial of "protections and responsibilities to married gay and lesbian couples."

    In a press statement, GLAD's Civil Rights Project Director Mary L. Bonauto said, "DOMA must fall. In 1996, when Congress passed DOMA, the stated goal was to harm gay people and same-sex families with this law, and sadly, it has succeeded. Married gay and lesbian couples fall through the federal safety nets that exist for other married people. We have to keep the pressure on and get DOMA off the books before it does even more harm."

    As reported by Chris Geidner for Metro Weekly, the ACLU and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP are representing Edith Windsor, the widow of Thea Spyer. "Windsor was forced to pay a $350,000 estate bill because of the federal government's refusal to recognize Windsor's marriage to Spyer. Robert Kaplan, a partner at the law firm, told Metro Weekly, "I have an 81-year-old client, and $350,000 is a hell of a lot of money - a huge amount of money that she paid in violation of the Constitution. My client had to pay the government, and she wants her money back. What we're seeking in the case is a check back - with interest."

    In a press statement on the lawsuit, ACLU's Lesbian, Gay, Bisexual and Transgender Project Director James Esseks said, "Edie and Thea were together for 44 years, the last two of which they were lucky enough to spend as a married couple. All Edie is seeking is the same treatment for her marriage that the federal government appropriately gives to married straight couples. It is completely unfair for the federal government to pretend the Edie and Thea were strangers, and to tax them that way."

    The Times notes that while President Obama has called DOMA discriminatory, and for its repeal, the Department of Justice, citing a tradition of defending congressional acts in court, has appealed Judge Tauro's ruling, and is likely to defend the law against the new challenges.

    Earlier this year, Bonauto talked with ACSblog about progress to advance marriage equality - noting the states that now recognize same-sex marriages - and the challenges that remain. Her interview is available here.

  • October 1, 2010
    One of the nation's leading civil rights attorneys, Mary Bonauto, covered some of the recent history of advancing equality for lesbians, gay men, bisexuals and transgender persons (LGBT community) at a recent Constitution Day celebration hosted by the ACS Boston Lawyer Chapter. Although great strides for equality have been made, much work remains to be done Bonauto told the gathering at WilmerHale LLP in Boston.

    Bonauto (pictured) was the first full time attorney for the Gay & lesbian Advocates & Defenders (GLAD), and in 1990 she recounted that a "key priority was enforcing the Massachusetts anti-discrimination law," which one of two laws in the nation banning discrimination based on sexual orientation in employment, housing, credit, and public accommodations.

    Bonauto, now GLAD's Civil Rights Project Director, said:

    At that time, there were plenty of people fired from their jobs the minute there was a sense that they might be gay or lesbian .... One case involved two women in Lynn who went used car shopping together. When the salesman realized they were a couple, he became irate, pulled an antenna off of a car, and went after them with it. So much for equal treatment in a place of public accommodation.

    Today, there is still discrimination, far less blatant now, and 21 states - not two - forbid it. Twelve of those states also forbid discrimination based on gender identity. We still need a national law to set a standard of fairness, but the ‘Employment Non-Discrimination Act' (ENDA) is stymied in Congress.

    Bonauto also touched upon the slightly increased acceptance of gay and lesbian relationships and the reaction it has caused among some Christian right organizations. Bonauto noted that a recent Gallup reveals that "a majority of people find ‘gay/lesbian relations' acceptable morally, whereas 43 percent do not."

    "But," she continued, "with change afoot, some would have you believe that gay people are tormenting those with religious objections to gay people, and that idea has gained some traction at the Supreme Court. How do we work out our co-existence when an interesting assortment of intellectuals, advocacy groups and faith leaders have joined the 2009 ‘Manhattan Declaration' vowing disobedience to any secular authority requiring that gay people and their relationships be treated as morally equivalent to others? How far should religious liberty exemptions go?"

  • July 9, 2010
    Yesterday's decisions by U.S. District Court Judge Joseph L. Tauro that found the Defense of Marriage (DOMA) to be constitutionally lacking is producing consternation among leading Religious Right lobbyists, such as the Family Research Council, and some debate among constitutional law scholars.

    The Family Research Council tagged Judge Tauro's decisions as judicial activism, though hardly surprising for an organization that knocks all progressive court decisions as activist. But constitutional law expert and dean of the law school at University of California, Irvine, Erwin Chemerinsky told The New York Times that the "key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, Does the government have a rational basis for treating same-sex couples differently from heterosexual couples? Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional." 

    During the 2010 ACS National Convention, a panel of experts explored the state of marriage equality, including both cases challenging DOMA. That panel included Mary Bonauto, the Civil Rights Project Director for Gay & Lesbian Advocates & Defenders (GLAD), who also represented the same-sex couples in the case that Judge Tauro ruled in - Gill et al v. Office of Personnel Management et al. GLAD is arguably one of the nation's leading organization's advancing equality for the LGBT community and its latest victory only adds to the group's efficacy.

    Following the panel discussion, Bonauto (pdf) talked with ACSblog about the history and struggles of the movement for marriage equality. Bonauto was co-counsel in the case that prompted the Vermont legislature to enact the nation's first "civil union" law for same-sex couples, and was lead counsel in the landmark case, Goodridge v. Dept. of Public Health, which resulted in the Massachusetts high court's decision that prohibiting marriage for same-sex couples violated the state's Constitution.

    Bonauto (pictured at the Convention) told ACSblog that she is seeing great progress for marriage equality. "I see enormous progress in the right direction," where Americans increasingly understand those same-sex couples and their marriages should not be relegated to second-class status. Bonauto, nonetheless, noted that great strides are yet to be made in securing equality for the LGBT community.

    Bonauto's interview is below -- albeit it took place during the clatter of a room being hastily prepared for the Convention's next event -- or it can be downloaded as a podcast here. Video of the entire panel, "Marriage Equality: An Update and Preview," is available here.

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  • July 8, 2010
    A federal judge ruled today that the Defense of Marriage Act (DOMA) is unconstitutional on a number of fronts. U.S. District Judge Joseph L. Tauro of Boston ruled that DOMA, signed into law by President Clinton, interferes with the right of states to define marriage and violates the Constitution's equal protection clause, The Associated Press reports.

    "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," Tauro wrote.

    Judge Tauro in Gill et al v. Office of Personnel Management et al, also concluded that the DOMA subverts the equal protection clause. Gay & Lesbian Advocates & Defenders (GLAD) on behalf of seven married same-sex couples and three widowers lodged the lawsuit against the federal anti-gay marriage law.

    In a press statement, Mary Bonauto (pictured), GLAD's Civil Rights Project Director, who argued the case, said, "I'm pleased that Judge Tauro recognized that married same-sex couples and surviving spouses have been seriously harmed by DOMA and that the plaintiffs deserve the same opportunities to care and provide for each other and for their children that other families enjoy. This ruling will make a real difference for countless families in Massachusetts."

    GLAD notes that the federal government has 60 days to decide whether to appeal Tauro's decision to the U.S. Court of Appeals for the First Circuit. Judge Tauro's decision is available here.