Fighting back

By DEIRDRE FULTON  |  June 4, 2010

"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," it reads. "Federal law, however, treats same-sex and opposite-sex couples differently."

San Francisco writer Paul Hogarth, an attorney and activist who covers gay rights for the online publication beyondchron.com and volunteered on the No On One campaign in Maine (which sought to persuade voters not to overturn the legislature's approval of gay marriage), sheds light on a paradox: for so long, gay couples have been asked to let civil unions or domestic partnerships stand in for marriage, with the proponents of the compromise asking, "If you get all the same benefits, why do you have to call it marriage?"

"We're always having to fight that battle," acknowledges Hogarth. But DOMA flips that argument on its head, to equally detrimental effect. In Massachusetts, he points out, "they have the term 'marriage' — they just can't have all the benefits that come along with it."

Arguing for the state
Coakley's argument is quite similar to GLAD's, but it's presented from a different perspective.

Whereas the GLAD case challenges DOMA on individual bases, the Coakley case outlines a state-level grievance.

"Because of Section 3 of DOMA," the complaint reads, "married individuals in same-sex relationships are both denied access to critically important rights and benefits and not held to the same obligations and responsibilities arising out of marriage . . . DOMA interferes with the Commonwealth's exclusive authority to determine and regulate the marital status of its citizens.

"In enacting DOMA," the lawsuit continues, Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."

Coakley's office also argued before Judge Tauro last month that the federal law forces Massachusetts to discriminate against its own citizens when it administers joint federal-state programs, such as authorizing burial of a same-sex spouse in a federally funded but state-administered veterans cemetery, or distributing Medicaid health benefits, which are paid for with a combination of federal and state dollars. Several candidates for attorneys general in other, neighboring states (such as Connecticut, where gay marriage is legal, or Rhode Island and New York, which recognize same-sex marriages legally performed in other states) have pledged to support the Coakley case or bring one of their own if they are elected.

Meanwhile, the defendant in both these cases — the federal government — finds itself in an awkward position, defending a law that the president has openly disavowed.

"The administration's position does not affect constitutionality," Justice Department lawyer Scott Simpson said at the May 6 hearing, explaining why the government is obligated to defend DOMA.

In a 2009 media release related to a DOMA case in California, the White House wrote: "As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

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