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Attempts to have the federal "Defense of
marriage act" (DOMA) ruled unconstitutional

Background.
"Gill" lawsuit launched in Boston federal district court.

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Background:

A review of the scope and impact on the lives of loving, committed same-sex couples and their children by federal Defense of Marriage Act (DOMA) appears elsewhere.

The Gay & Lesbian Advocates & Defenders group (GLAD) is a gay-positive civil rights organization. They conducted a confidential survey among married same-sex couples who continue to be negatively impacted by the federal Defense of Marriage Act (DOMA). See the GLAD web site.

Between 2004 and 2008, a half-dozen lawsuits were initiated to have the federal DOMA law declared unconstitutional. None succeeded.

Some arguments in favor of declaring the third section of DOMA law unconstitutional is:

  • The 5th Amendment of the U.S. Constitution guarantees equal protection under federal and state laws for each individual and married couple.

  • Eligibility for marriage has always been defined by the individual states. States have various minimum ages below which a person may not marry, consanguinity limits, affinity limits, etc. Some states limit marriage to one woman and one man. The District of Columbia, Massachusetts, and a growing number of other states allow loving, committed same-sex and opposite-sex couples to marry.

  • In the past, when a couple was married in the U.S., the federal government had always recognized that marriage as valid. A near exception was a federal law forbidding polygamy in Utah. However Utah was a territory at the time. Over 1,100 federal laws now involve recognition of marriage, and treat married couples differently from single individuals.

  • In 1996, before any state allowed SSM, the federal DOMA law was passed. This prohibited the federal government from recognizing same-sex marriages even if they are recognized and registered by a state or by the District of Columbia.

  • Although married couples before, during, and after their marriage have paid taxes, contributed to Social Security, and met other qualifying requirements to receive benefits under a federal law, the DOMA law requires that same-sex married couples are to be recognized only as roommates. This makes them ineligible for many federal government programs.

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2009-MAR-03: Lawsuit filed in Massachusetts:

GLAD filed a lawsuit in Federal District Court in Boston MA called: "Gill et al v. Office of Personnel Management et al." It was on behalf of eight same-sex married couples and three surviving spouses whose same-sex marriage partner had died. 1 These 19 individuals represent a small sample of the more than 20,000 bisexuals and homosexuals who have been married in same-sex marriages in Massachusetts since 2004. Each plaintiff lives in this state and:

"... 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”). 2

The complaint states in its introduction:

"Plaintiffs in this action are citizens of the Commonwealth of Massachusetts and the United States of America. Each of the plaintiffs is, or was until becoming a widower, legally married to a person of the same sex in accordance with the requirements of Massachusetts state law."

"Although the federal government does not license marriages, a large number of its programs take marital status into account in determining eligibility for federal protections, benefits and responsibilities. Statute, precedent, and practice establish state law as the touchstone for determining a couple’s marital status for purposes of determining eligibility for federal programs."

"Each plaintiff, or his or her spouse, has made one or more requests to the appropriate agencies or authorities within the federal government for treatment as a married couple, a spouse, or a widower with respect to particular programs or benefits. Yet each of the plaintiffs has been denied and is still being denied legal protections and benefits under federal law that are available to a similarly situated person married to an
individual of a different sex under Massachusetts law."

"With each denial of specific protections or benefits, the defendants or their agents have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”), and have stated that the federal government will only respect marriages between a man and a woman."

The complaint requests:

"... declaratory and injunctive relief ... and for review of agency action. ... It seeks a determination that DOMA['s Section 3] ... as applied to plaintiffs, violates the United States Constitution by refusing to recognize lawful marriages for purposes of the laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports. The result of these violations of the Constitution is that each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex.

The complaint notes that:

"Each plaintiff is a citizen of the Commonwealth of Massachusetts and of the United States and has borne the obligations of citizenship by paying taxes and contributing to Social Security."

"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."

" Each of the plaintiffs is, or was until becoming a widower, married to a person of the same sex in accordance with the legal requirements of the Commonwealth of Massachusetts. Each of the plaintiffs married to nurture and support his or her family and, for some plaintiffs, to raise children. Each of these marriages was duly recognized under state law. However, DOMA ... burdens their ability to form and support their marriages and families and to raise their children. ..."

"The plaintiffs are similarly situated to persons married to individuals of a different sex and, under Massachusetts law, are accorded the same status, responsibilities, and protections as other married persons. Federal law, however, treats same-sex opposite-sex couples differently in the specific ways set forth ... below. ..."

"In 1996, in passing DOMA ... Congress took the unprecedented step of preemptively nullifying a class of marriages that it expected states
would begin to license at some point in the future, that is, marriages of same-sex couples."

"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. Yet when same-sex couples began to marry in Massachusetts, DOMA ... operated to single out one class of marriages legally recognized by the Commonwealth of Massachusetts, those of same-sex couples, and to deny their existence for all conceivable ends and purposes of federal law."

In 1997, the Congressional General Accounting Office (GAO) estimated that at least 1,049 federal laws were affected by DOMA. 3 This study was repeated in 2004, when the GAO found 1,138 laws affected. 4

GLAD seeks a court ruling declaring that Section 3 of DOMA:

"... is unconstitutional as a matter of equal protection as applied to the plaintiffs in Federal Income Tax, Social Security, federal employment benefits, and the issuance of passports. The case seeks a determination that DOMA Section 3, codified in law as 1 U.S.C. section 7, violates the United States Constitution and an injunction to stop the Office of Personnel Management, IRS, Social Security Administration and the State Department from applying the law as declared. It is GLAD’s hope that a favorable ruling in these areas can be applied to other areas of federal law, and/or that such a ruling would encourage Congress to consider repealing the law."

Such a court ruling would not eliminate all of the forms of discrimination that DOMA requires. However, it would be a major first step.

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This story continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Nancy Gill et al, "Complaint for declaratory,injunctive, or other relief and for review of agency action," Gay & Lesbian Advocates & Defenders, 2009-MAR-03, at: http://www.glad.org This is a PDF file.
  2. " 'DOMA' means federal discrimination against married same-sex couples," Gay & Lesbian Advocates & Defenders, at: http://www.glad.org
  3. "GAO/OGC-97-16 Defense of Marriage Act (1997)," U.S. Gen. Accounting Office, 1997, at: http://www.gao.gov/.
  4. "GAO-04-353R Defense of Marriage Act (2004)," U.S. Gen. Accounting Office, 2004, at: http://www.gao.gov/

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconst. > Gill > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconst. > Gill > here

Copyright © 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2010-JUL-13
Latest update: 2011-FEB-24
Author: B.A. Robinson

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