By Lisa Keen
A year ago, there were none. Now there are five lawsuits in federal court seeking to establish equal rights for gay couples in marriage licensing.
But these are not five equally matched horses heading for the same finish line. Two of them challenge one aspect of the federal Defense of Marriage Act, while the other three seek to strike own statewide bans on gay marriage as being in violation of the U.S. Constitution.
An enormously successful gay litigation group is waging one lawsuit on behalf of multiple plaintiffs; a recent law school graduate has mounted another lawsuit behalf of himself and his 18-year-old spouse-to-be.
The most recent entry is a lawsuit filed by the Commonwealth of Massachusetts on July 8 – the first state-driven lawsuit to enter the field. Massachusetts was also the first state to enable same-sex couples to obtain marriage licenses the same as heterosexual couples.
Massachusetts Attorney General Martha Coakley said many of the state’s married residents and their families “are being hurt by a discriminatory, unprecedented, and – we believe – unconstitutional federal law.”
Challenging DOMA Section 3
The state’s lawsuit challenges that law, the Defense of Marriage Act, passed in 1996. DOMA provides that no state can be “required” to recognize the marriage of a same-sex couple licensed in another state and limits the interpretation of “marriage” for any federal purpose to only heterosexual couples. The Massachusetts lawsuit, Massachusetts v. U.S., challenges only the latter part, also known as Section 3.
The lawsuit was filed with the federal district court in Boston, the same court where the first and only gay community-driven lawsuit was filed in March. Gay & Lesbian Advocates & Defenders, the group that won equal marriage rights in the courts of Massachusetts in 2004 and Connecticut in 2008, filed its challenge of DOMA Section 3 in March. GLAD’s lawsuit, Gill v. Office of Personnel Management, says DOMA’s Section 3 violates the constitution’s 5th Amendment guarantee of equal protection of the law, by treating same-sex couples with marriage licenses differently than heterosexual couples with marriage licenses.
GLAD’s lawsuit represents eight married couples and three gay individuals whose spouses have died. It has already scored one victory. In June, the U.S. Department of Justice announced that the Department of State was immediately amending provisions that prevented the issuance of new passports to gay spouses who changed their names after legally marrying.
Attorney General Coakley said that more than 16,000 same-sex couples have obtained marriage licenses in Massachusetts since May 2004, when the state began allowing gay couples to obtain marriage licenses the same as heterosexual couples.
Challenging statewide bans
At least three other lawsuits have been filed in federal court in the past six months, but these are distinctly different. They challenge statewide bans of same-sex marriage, arguing that they are in violation of the U.S. Constitution.
The highest profile and most sophisticated of these three is Perry v. Schwarzenegger, filed by the newly created American Foundation for Equal Rights. The lawsuit was filed in federal district court in San Francisco in May on behalf of a lesbian couple and a gay male couple. It drew immediate and considerable media attention because its lead attorneys are the prominent conservative attorney Theodore Olsen and liberal attorney David Boies. Olson and Boies were opponents in the historic 2000 U.S. Supreme Court case, Bush v. Gore, which declared that George W. Bush would become president.
The Perry lawsuit was prompted by Proposition 8, which amended the California constitution to ban same-sex marriage, but says the subsequent inability of gay couples to marry there is a violation of their equal protection rights under the U.S. Constitution. A judge has promised a speedy trial on the matter and requested preliminary briefs be filed by August 7.
Another case in California, Smelt v. U.S., was filed in December after voters approved Proposition 8, but was initiated in 2004 by a gay male couple, Arthur Smelt and Christopher Hammer, represented by a private attorney. Their legal challenge has been criticized all along the way gay legal activists and legal scholars as flawed and weak on several procedural grounds. But the lawsuit was also the subject of enormous media and community attention recently when it elicited a controversial brief from the Obama Justice Department. Even though President Obama has repeatedly stated he believes DOMA should be repealed, his Justice Department defended the law far beyond procedural matters, even claiming, “DOMA does not discriminate against homosexuals in the provision of federal benefits,” a contention that seems boldly indefensible in light of the text of the law.
The remaining lawsuit, Bonilla v. Levine, is the least known and the least likely to succeed. It, like Smelt, was filed by an individual gay male couple, Kristoffer Bonilla and John Wray, without the aid or blessing of any gay litigation group. Bonilla, a recent law school graduate, is representing the couple in a federal court in New Orleans.