Lawsuit Says 1996 "Defense of Marriage Act" Denies Spouses Equal Protection of the Law

With the economy, Obama's first 100 days, Susan Boyle and now H1N1 flu (fka swine), other news tends to fade. But on March 3, 2009, attorneys in Massachusetts filed what could be a landmark lawsuit to recognize equal rights for gay people in U.S. federal law.

The suit by New England's Gay & Lesbian Advocates & Defenders (GLAD), which is celebrating 30 years in practice, charges that provisions of the 1996 "Defense of Marriage Act" that deny federal legal protections to married same-sex spouses are unconstitutional and should be overturned.

GLAD said it filed the suit "on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. Two of these couples will be filing suit after receiving rejections of their amended tax returns from the IRS. Each plaintiff is currently eligible for a particular program or benefit, applied for it, and was denied that legal protection because of Section 3 of the Defense of Marriage Act (DOMA)."

GLAD says Section 3 has denied the plaintiffs equal protection for federal employee health benefits and survivor benefits; joint federal tax returns; spousal IRAs; Social Security survivor benefits, lump-sum survivor death benefits, and higher-earning spouse payments; and passports issued in their legally married names.

One person working for more public awareness of the DOMA suit is Boston Globe columnist Ellen Goodman. In an April 17th column, she noted that with same-sex couples now able to marry legally in four states, DOMA has created "A strange dual citizenship for gay couples." Continuing in Goodman's words.

"...we have just doubled the number of states in which same-sex couples can be legally married. First, Iowa joined Massachusetts and Connecticut. Then Vermont followed with the first legislative approval. And a bill was just introduced in New York, where people cringe to find themselves lagging behind Iowa.

"This is all part of a careful state-by-state strategy. But as a side effect, it's producing more Americans with a strange dual citizenship: married in the eyes of Iowa, single in the eyes of Washington. Eligible for a pension, healthcare, family leave in the eyes of the state; ineligible in the eyes of the feds.

"DOMA is doing it. The so-called Defense of Marriage Act passed in the panic of 1996 when it looked as if Hawaii would become the first state with gay marriage. The purpose was as obvious and discriminatory as Representative Henry Hyde's declaration that DOMA was to express 'disapprobation' for homosexuality.

"The day that it passed, Dean Hara remembers deliberately going to have dinner in the members' lounge with his longtime partner, Representative Gerry Studds of Massachusetts, to face down his colleagues. Now, 13 years later, after their marriage and Studds's death, Hara is denied congressional survivor's annuities of $60,000 a year.

"Much has changed since 1996. Even former representative Bob Barr, who wrote DOMA, now disavows it.

"GLAD, the gay rights group that brought the marriage case to the Massachusetts court, is arguing on pretty narrow grounds. 'In our system,' says Mary Bonauto of GLAD, 'the states decide who gets married. It's a violation of equal protection to deny recognition of marriages of same-sex couples validly licensed by their state.

"'Our case does not seek to marry any more people,' she adds carefully. 'It's about how the federal government is dealing with people already married by their states.'

"But this is also a next step, the first direct confrontation with a federal law against gay marriage.

"There is still enormous controversy around this issue, as well as setbacks - such as Proposition 8 in California. But in the glacial scheme of social change, attitudes are evolving at whitewater speed. Civil unions were once radical, now they are the conservative default position. The scare tactics of 1996 are the satires of 2009.

"So what do you say about an out-of-date law that enforces an identity crisis? What do you say about a law that 'defends' marriage by denying it? The winds are blowing, but in a very different direction."