Fighting back

Two cases in federal court here in Massachusetts could help turn the national tide against DOMA
By DEIRDRE FULTON  |  June 4, 2010


Marriage and the Supremes: What will the highest court say about same-sex matrimony? By Jeff Inglis.

Open service: Repeal of military’s gay ban moves forward. By Kegan Zema.

Visiting hours: Obama expands rights of same-sex partners. By Andrew Steinbeiser.

Thanks to a federal law that codifies discrimination against same-sex couples, more than 15,000 legally married couples (and an untold number of children) are being denied basic benefits, such as the right to file their taxes jointly, or Social Security payments and health-insurance subsidies.

Now that law is under significant assault, a one-two punch thrown in a state that already issues marriage licenses to same-sex couples. A pair of lawsuits being considered in federal court in Massachusetts is taking on the Defense of Marriage Act (DOMA) and its definition of marriage as between one man and one woman. The much-anticipated results could change the national conversation about gay rights.

The outcomes of these two separate but complementary court cases would certainly affect the lives of the couples that have wed in Massachusetts since gay marriage was officially legalized in the state in 2004. But if the cases ascend the legal ladder as far as the Supreme Court, they could also have larger implications.

DOMA, passed and signed into law by President Bill Clinton in the fall of 1996, was born as a reaction to the fact that Hawaii's courts and legislature were considering same-sex marriage — a pre-emptive strike from Congress. The law does two things: first, it ensures that states do not have to honor each other's marriage codes — a relationship that is a marriage in one state does not have to be considered such in another (meaning a legal gay union in, say, Massachusetts can be ignored in, say, Alabama); second, it defines marriage as a legal union between one man and one woman, casting a dubious shadow over marriages between same-sex partners.

That could change. In 2009, within several months of each other, the Gay & Lesbian Advocates & Defenders (GLAD) and Massachusetts Attorney General Martha Coakley both filed separate challenges in federal court, claiming that DOMA is unconstitutional. The former, officially referred to as Gill v. the Office of Personnel Management, was filed on behalf of eight couples and three individuals who have been negatively affected by DOMA, by being denied federal entitlements because the government considers them unmarried. The second, the Coakley effort, claims that DOMA "interferes with the Commonwealth's sovereign authority to define and regulate marriage . . . [and] constitutes an overreaching and discriminatory federal law." The GLAD case presented oral arguments on May 6; Coakley's case did so on May 26.

While the Obama administration has stated that it thinks DOMA is bad policy, and a bill to repeal the law has more than 100 co-sponsors in the House of Representatives, these court challenges — which could make it all the way to the Supreme Court (see "Marriage and the Supremes") — are considered the best chance to get rid of DOMA, and in doing so, take one more step toward equal rights for gay and lesbian couples.

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