Federal �defense of marriage� act faces court challenge

by Eric Resnick

Boston--A federal court in Massachusetts has been asked to declare the federal �defense of marriage act� unconstitutional.

Eight same-sex couples and three surviving spouses, all married in Massachusetts but unable to access federal rights and benefits due to the 1996 law, are asking the court to grant them equality with opposite-sex spouses.

The plaintiffs are represented by the Gay and Lesbian Advocates and Defenders, the Boston legal advocacy organization that won the right to marry in Massachusetts in 2004.

The suit was filed March 3.

�As United States citizens, each of the plaintiffs is entitled to equal consideration and treatment from the federal government, and with respect to each and every program operated by the federal government, including employment and retirement benefit programs arising from employment with the federal government, Social Security, taxation, and passport services,� according to the complaint.

�If not for the application of DOMA to all federal programs, the plaintiffs, as persons married under Massachusetts law, would receive the same status, responsibilities and protections under federal law as other married persons,� the complaint continues.

DOMA 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 plaintiffs claim they are being discriminated against as federal employees unable to cover their spouse with federal health and retirement benefits, as taxpayers unable to file federal returns as a married couple, as having difficulty obtaining passports, and the inability to access their spouse�s Social Security benefits in the case of survivorship.

One of the plaintiffs, Dean Hara, is the widowed spouse of former Rep. Gerry Studds.

At the time of Studds� death in 2006, Hara was denied the $255 death benefit surviving spouses are entitled to under Social Security.

Hara has also been unable to receive Studds� congressional pension due to DOMA. He instead received a small lump sum payment as would a non-spousal designee.

�It�s time for the federal government to end its blatant double standard of providing rights and protections to all married couples except gay and lesbian married couples,� said Mary Bonauto, Civil Rights Project director for GLAD. �Same-sex married couples have taken on the commitment of marriage, play by the rules, and pay into the system. But they are denied critical federal legal protections that form a safety net to support other married couples and their children.�

The plaintiffs argue that the third section of DOMA, the part that defines marriage for federal purposes, violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and in the issuance of passports.

They also contend that section is an unprecedented intrusion by the federal government into marriage law, always considered the province of the states.

The suit does not ask the Court to invalidate DOMA in its entirety. It does not challenge Section 2, which gives the states the right to decide if they will recognize same-sex marriages from other states.

Since the suit is expected to ultimately be decided by the U.S. Supreme Court, it is strategically advantageous to limit the scope of the suit to one issue the court can focus on.

The case has been assigned to Judge Joseph Tauro, a Nixon nominee, who in 2004 also rejected a federal challenge to Massachusetts� recognition of same-sex marriage, allowing them to take effect.

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