Gill v. Office of Personnel Management

Brief Filed: 11/11
Court: U.S. Court of Appeals for the First Circuit
Year of Decision: 2012

Read the full-text amicus brief (PDF, 115KB)


At challenge is the constitutionality of section 3 of the Defense of Marriage Act, the section that defines the term "marriage", for all federal purposes, as "a legal union between one man and one woman as husband and wife" and thus requires the federal government to disregard marriages of same-sex couples

Index Topic

Marriage Equality


This lawsuit is a challenge to the constitutionality of section 3 of the Defense of Marriage Act (DOMA), the section that defines the terms "marriage" as "a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife." Section 3 prevents the federal government from recognizing the marriages of same-sex couples who are legally married in their own states and restricts the federal government from granting such couples any federal benefits it provides to opposite-sex married couples.

The Gill case was brought by Gay & Lesbian Advocates and Defenders (GLAD) on behalf of a group of individuals who are either Massachusetts married couples or widows/widowers. They complain of specific harms caused by the non-recognition of their marriages by the federal government, in such areas as income taxation, Social Security benefits and federal employee benefits. They argue that heightened scrutiny is warranted but that even applying rational basis scrutiny there is no sufficient justification for singling out one group of married couples for disparate treatment.

The case was heard by District Judge Joseph Louis Tauro. In July 2010, Judge Tauro ruled section 3 of DOMA unconstitutional in a summary judgment decision stating, “As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.” He later stayed the implementation of his decision pending appeal and the Department of Justice (DOJ) entered an appeal on October 12, 2010. While the plaintiffs had asked Tauro to find that sexual orientation was a suspect class and therefore properly treated with strict scrutiny, Tauro found that section 3 was unconstitutional on rational basis grounds. He did not address the question of whether heightened scrutiny was warranted. Tauro issued a decision in Massachusetts v. U.S. Department of Health and Human Services, which found the same provision of DOMA on the same day he released his opinion in Gill. Tauro entered his final judgment — a document developed in consultation with the parties to the case — on Aug. 18 and granted a stay for the duration of the appeals process.

In January 2011, the DOJ filed a single brief in the First Circuit Court of Appeals that defended DOMA in both Gill and the related case brought by the Commonwealth of Massachusetts. On Feb. 25, the DOJ notified the Court that it will "cease to defend" both cases. Accordingly, the leadership of the House of Representatives intervened to defend the law. Instead of defending DOMA, DOJ has filed a brief arguing that heightened scrutiny is required when government discriminates on the basis of sexual orientation and that DOMA cannot withstand such heightened scrutiny.

This challenge is the first case in the nation to be filed against DOMA to reach a federal appellate court.

APA's Position

APA’s brief, in support of the plaintiffs/appellees, was joined by the Massachusetts Psychological Association, the American Psychiatric Association, the National Association of Social Workers and its Massachusetts Chapter, the American Medical Association and the American Academy of Pediatrics. The brief applies social science research to rebut some of the justifications offered for the prohibition in section 3 of DOMA of any federal recognition of the marriages of same-sex couples. Those justifications, involving procreation, the welfare of children and the like, are closely similar to those offered in cases defending states’ refusal to allow same-sex couples to marry. The amicus brief provides extensive psychological research on key points, including how homosexuality is a normal expression of human sexuality, is generally not chosen and is highly resistant to change. Also provided is current scientific research on the nature of same-sex relationships, the role of child-rearing and the stigma resulting from denying the label “marriage” to same-sex unions. For example, the brief cited psychological research showing that gay and lesbian parents are not any less fit or capable than heterosexual parents, and that their children are not less adjusted. The brief also addresses how denying federal recognition to legally married same-sex couples stigmatizes them.


The First Circuit issued an opinion on May 31, 2012, upholding the lower court’s decision to strike down the provision of DOMA that barred same-sex couples who are married in states that allow same-sex marriage from receiving any federal benefits associated with marriage. The social science research was a basis for the decision upheld.