March 03, 2009
Challenging DOMA, finally
Posted by: Andoni
Finally, someone is challenging the Defense of Marriage Act (DOMA) in a smart fashion. The Gay and Lesbian Advocates and Defenders (GLAD, with one "A"), the same group that successfully challenged the marriage laws in MA and won -- resulting in the first state to perform same sex marriages, is now challenging DOMA. It isn't challenging all of DOMA, but only certain aspects of Section 3, the section that says that the federal government won't recognize same sex marriages.
The legal group is honing in on "equal protection" of certain federal benefits that most Americans can relate to, such as Social Security survival benefits, joint filing of income taxes, retirement plans for federal employees, and passports. GLAD has found eight married couples and three widowers as plaintiffs for the suit. One is Dean Hara, former spouse of deceased Congressman Gerry Studds (D-MA), who was denied the Congressional pension and other benefits normally given to surviving spouses of federal employees.
Will this work? I think it has a darn good chance. GLAD has a great track record of knowing when and how to challenge things. Because of the importance of this case, it is quite likely that the final word will be from the U.S. Supreme many years from now. But because it would be extremely difficult for the Court to enumerate exactly what rights and benefits Section 3 should exclude, it is quite likely that all of Section 3 would fall. That would mean any legal marriage would be eligible for those 1100+ federal benefits now denied gay married couples.
What will be interesting for me is how vigorously the lawyers from the Obama Justice Department will defend this case. If Obama himself feels that all of DOMA is unconstitutional, can this be reflected by the Justice Department? And if the plaintiffs win in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), would the Obama Administration appeal to the Supreme Court? Or would they let the decision stand, allowing most of New England to receive federal benefits for same sex marriage.
I believe the most likely outcome of this lawsuit is that the publicity surrounding this case will shift public opinion into realizing the inherent unfairness of DOMA section 3, and that Congress will repeal that section before this case reaches the Supreme Court.
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