By Lisa Keen
The Gay and Lesbian Alliance of Defenders, who brought marriage equality to Massachusetts and Connecticut, filed a lawsuit on March 3 in Federal District Court in Boston, seeking to challenge the federal Defense of Marriage Act.
The case, Gill v. Office of Personnel Management, is the first concerted, multi-plaintiff legal challenge to the federal law that prohibits federal recognition of same-sex relationships and allows states that do not provide equal rights to gay couples the ability to ignore such marriages granted in other states.
The lawsuit seeks a declaration that DOMA, enacted in 1996, is unconstitutional and impacts gay couples in federal income tax, Social Security, federal employment benefits and in the issuance of passports.
Specifically, the lawsuit challenges only Section 3 of DOMA – the section that states that, for federal purposes, "marriage" can mean only marriage between a man and a woman. The language essentially denies gay partners and spouses 1,138 federal benefits enjoyed by married heterosexual spouses.
Section 1 is simply the title of the law. Section 2 says that states don't have to recognize same-sex "relationships between persons of the same sex." Constitutional law expert Laurence Tribe has said that Section 2 is essentially redundant to an already existing provision of the constitution that allows states to ignore the laws of another state if they are against the home state's public policy.
Carisa Cunningham (cq), spokesperson for the group, said GLAD is not challenging Section 2 of the law because it is "largely meaningless."
"It restates existing practice where states are free to recognize or not recognize marriages," said Cunningham.
Mary Bonauto, Civil Rights Project Director for GLAD, said the group's position is "very mainstream." The federal government, she said, routinely defers to the states when it comes to the regulation of marriage. But DOMA, she said, was the "first time ever" that the federal government sought to override an entire class of marriages at the state level.
"Congress really stepped out of line when it passed this law," said Bonauto.
The lawsuit says DOMA's Section 3 violates the constitution's Fifth Amendment guarantee of equal protection of the law by treating same-sex couples with marriage licenses differently than heterosexual couples with marriage licenses.
"All federal employees married to a spouse of the same sex are denied all spousal employment protections, which enable married people to take care of each other, such as the ability to add the spouse to a family health plan or name the spouses as a survivor on the employee's pension," noted GLAD.
DOMA also denies spousal protections available under the Internal Revenue Code, such as the ability to cover a spouse on a health plan without paying income tax on that benefit.
GLAD says it believes any effort to repeal DOMA in Congress is "unlikely" to happen in the next four years, even though President Obama is on record as supporting repeal. It acknowledged, too, that the LGBT community "has many priorities that probably rank ahead of DOMA repeal, including the passage of the Employment Non-Discrimination Act, a hate crimes bill, the Uniting American Families Act and repeal of Don't Ask, Don't Tell."
The lawsuit is filed on behalf of eight married couples and three surviving spouses, including Dean Hara, that of the late U.S. Rep. Gerry Studds (D-Mass.). The lead couple is Nancy Gill and Marcelle Letourneau
A fact sheet issued by GLAD says that the case could be of interest to the U.S. Supreme Court but would likely not reach that level until 2013.
