by Rex Wockner
The New England legal group Gay & Lesbian Advocates & Defenders filed a multiplaintiff lawsuit challenging the constitutionality of the federal Defense of Marriage Act on Nov. 9.
In Pedersen v. Office of Personnel Management, GLAD represents five married same-sex couples and a widower, who live in Connecticut, Vermont and New Hampshire. The 11 plaintiffs all have been denied federal rights and protections solely because they are married to a person of the same sex.
The suit, filed in federal District Court in Connecticut, addresses DOMA's nonrecognition of marriages in connection with federal employee and retiree benefits programs, Social Security benefits, survivor benefits under federal pension laws, work leave to care for a spouse under the Family and Medical Leave Act, and state retiree health insurance benefits that are controlled by federal tax law.
Additional plaintiffs who pay excess federal income tax because they cannot file their federal returns as married couples will join the suit once the IRS officially rejects their requests for refunds.
"Every day that DOMA stands, it arbitrarily divides married couples into two categories," said GLAD Legal Director Gary Buseck.
Also on Nov. 9, the American Civil Liberties Union sued the feds in New York over DOMA.
The group represents 81-year-old Edie Windsor, who had to pay $350,000 in additional estate taxes because the federal government treated her as single, even though she was married to Thea Spyer and their marriage was recognized by the state of New York.
"(T)he federal government … taxed Thea's estate as though we were strangers rather than spouses," Windsor said. "(It's) a tax on being gay."
"These cases provide further evidence that the so-called Defense of Marriage Act is not simply an abstract insult to the dignity of same-sex couples and their families — although it is indeed a deeply offensive law," said Human Rights Campaign President Joe Solmonese. "DOMA causes real harm to people like Joanne Pedersen, Ann Meitzen and Edie Windsor, denying them economic security, health coverage and other critical federal rights and benefits that other married couples take for granted."
The section of DOMA that prevents the federal government from recognizing states' same-sex marriages already was struck down as unconstitutional earlier this year in two cases from Massachusetts, but the Obama administration has appealed the rulings.
The section, which the federal District Court in Boston found unconstitutional in three ways, states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
The language overrides any state's determination that a couple is married and says that they are not married for purposes of all federal laws and programs, even though the federal government otherwise has always deferred to state determinations of marital status.
The Boston court said DOMA violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution by treating married gay couples differently from married straight couples without any rational basis for doing so. It also found that DOMA violates the 10th Amendment to the U.S. Constitution by intruding in areas of exclusive state authority, and violates the Spending Clause in Article 1 of the Constitution by forcing Massachusetts to discriminate against its married gay citizens in order to receive certain types of federal funding.
President Barack Obama does not support same-sex marriage, although he did in 1996 when he was campaigning for an Illinois Senate seat. But in a recent White House meeting with five progressive bloggers, the president suggested he might be getting ready to change his mind again.
"I do not intend to make big news sitting here with the five of you, as wonderful as you guys are," Obama said at the Oct. 27 meeting. "But I'll say this. … I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage. But I also think you're right that attitudes evolve, including mine. And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents, and I care about them deeply. And so while I'm not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it's fair to say that it's something that I think a lot about. That's probably the best you'll do out of me today. … The one thing I will say today is I think it's pretty clear where the trendlines are going … the arc of history."
