Fees Denied for DOMA Challengers in Military

     BOSTON (CN) – Gay soldiers cannot recover attorneys’ fees for their challenge of the Defense of Marriage Act, which was stayed while the Supreme Court resolved a similar case, the 1st Circuit ruled.
     Maj. Shannon McLaughlin led the plaintiff group in the case, which included active-duty members of the U.S. armed forces and National Guard, veterans and their same-sex spouses.
     They filed suit in October 2011 over a provision of the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman. It had already been eight months, however, since President Barack Obama announced that his administration would not defend Section 3 of DOMA.
     A lesbian widow named Edith Windsor was already in the middle of her own challenge of DOMA because the law kept her from enjoying an estate-tax exemption after inheriting her late wife’s estate.
     The McLaughlin group’s challenge in Boston was stayed while Windsor’s case went to the U.S. Supreme Court. After the justices struck down Section 3 of DOMA in June 2013, a federal judge ruled for the McLaughlin group that October. The plaintiffs moved for reimbursement of their attorneys’ fees shortly after, noting that Obama’s position on DOMA could not have been substantially justified because the administration’s position before and during the litigation involved “knowingly and intentionally violat[ing] the [McLaughlin Group’s] constitutional rights.”
     “Its litigate-to-lose strategy concedes that its position is not substantially justified,” they claimed.
     U.S. District Judge Richard Stearns nevertheless refused to award them fees, finding that Obama’s approach, “preserving the justiciability of Section 3 of DOMA by continuing to enforce it despite a personal belief that the statute was unconstitutional, paid the appropriate respect to the primacy of the Supreme Court in matters of constitutional interpretation.”
     A three-judge panel with the 1st Circuit affirmed Tuesday.
     “The District Court’s denial of fees was correct as a matter of law because the government reasonably believed its actions were constitutionally appropriate under the circumstances,” Chief Judge Sandra Lynch wrote for the court.
     Lynch added that, “contrary to what the McLaughlin Group argues, the District Court did not improperly look to ‘non-merits based justifications.'”
     “Rather, the lower court properly focused on the constitutional difficulties faced by the government,” the 15-page opinion continues.
     Despite the belief by Obama and his administration that “Section 3 of DOMA was unconstitutional, the House of Representatives strongly disagreed,” the ruling also notes.
     “The president may have ultimately been correct, but until the Supreme Court resolved the issue in Windsor, it is hard to see how the enforcement of Section 3 was a ‘knowing’ rights violation,” Lynch wrote.
     Ultimately the basis for denying the McLaughlin group costs “was readily apparent,” according to the ruling.

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