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    March 03, 2009

    Challenging DOMA, finally

    Posted by: Andoni

    AAA Studds
    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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    1. JustMeee on Mar 3, 2009 1:42:24 PM:

      Isn't it time to remove Chris's picture from this blog, since he's obviously lost interest?

    1. Strict Scrutiny on Mar 3, 2009 5:04:10 PM:

      I wouldn't hold my breath, Andoni. The Roberts court is a conservative one and could very easily reject any argument that DOMA violates Equal Protection.

      Think about it. If the Court were to agree with GLAD/you and me, it would set a legal precedent which could and would bolster arguments in favor of same-sex marriage at both the state and federal levels. Scalia et al. knows that. And because they know that, I think they would be more than happy take jurisdiction of this case, reject GLAD's arguments, and interpret the EP clause to deny legal rights to same-sex couples.

      This is precisely why the folks challenging Prop 8 have not invoked the federal constitution (i.e. because it would give the federal supreme court discretion to weigh in).

      I get it that GLAD is only challenging the one part of DOMA, but I still think it could backfire.

    1. Andoni on Mar 3, 2009 8:04:21 PM:

      Strict Scrutiny, you may be right BUT....
      if the case came to the Supreme Court today, the gays just might win. Obviously Thomas, Scalia, Roberts, and Alito would vote against us. Stevens, Souter, Ginsburg, and Breyer would probably vote for us. Kennedy is now the swing vote and the good news is that in Romer v Evans (Colorado Amendment II) he voted with us and wrote the decision. Supposedly he is neighbors with a gay couple and the Kennedy's and the gay couple go out to dinner regularly... so Kennedy gets it, when it comes to gay equality.

      Also, in Lawrence v Texas striking down the sodomy laws, again Kennedy voted with us and wrote the decision.

      Both the above decisions were before Roberts and Alito. Back then Rehnquist voted no, but O'Conner voted with us, so both decisions were 6-3 wins. Today, Roberts replaced Rehnquist (maintains a no vote), but Alito replaced O'Conner, turning one of our yes votes, into a no.

      So any decision today will be much closer.

      I'm assuming if one of the "good Justices" leaves the Court, Obama will replace them with a progressive Justice. And if one of the "bad Justices" leaves, Obama will replace them with a good Justice.

      Our best chance of replacing a "bad guy" with a "good guy" are with Scalia. He is 73. However, most of the "good guys" are even older than this, so they are more likely to leave first. We just have to pray that when any opening comes up, Obama nominates someone who believes in gay equality.

    1. Tim on Mar 3, 2009 9:57:28 PM:

      why would Obama do that? he doesn't seem to believe in it

    1. Strict Scrutiny on Mar 3, 2009 11:55:42 PM:

      All good points, Andoni, and all very true. However, I am not entirely sure that Kennedy would vote with us this time.

      Kennedy does have gay friends and he is a fair-minded, middle of the road individual. However, in Lawrence v. Texas, he implied that the court was not necessarily approving of gay relationships, but merely allowing them to be free of criminal prosecution for engaging in same-sex relations. So, I guess what I'm saying is that Kennedy is more progressive than Roberts et al., but I'm not sure he is THIS progressive.

      In my view, it's a coin toss. I think we should have waited for Obama to make an attempt to repeal DOMA. He might have been successful. Now, however, there is the specter of an adverse constitutional ruling that could damage our chances of gains in the long-run.

      I hope GLAD is right and I am wrong.

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