Fighting back

By DEIRDRE FULTON  |  June 4, 2010

The government's defense centers on incrementalism — the idea that huge overhauls in government policy need to be taken slowly, and that "observing the status quo can be in the government interest," as Simpson said at the May 6 hearing. The government is suggesting that reserving federal benefits for heterosexual married couples is the status quo. (In her oral argument, Bonauto countered that state sovereignty with regard to marriage law is the status quo.)

Simpson also suggested that allowing same-sex couples access to federal benefits could be a bureaucratic burden. "States can serve as laboratories," he said, "but that should not affect how the federal government applies federal law."

With her tongue planted firmly in her cheek, Bonauto responded to that argument by saying that the federal government was well-equipped to handle an influx of benefit applications from same-sex couples: "We're not talking about a mom-and-pop organization here."

A Supreme likelihood
It's likely that Judge Tauro will hand down decisions on both cases on the same day; those in the know believe those decisions will come this summer, but there is no concrete timetable.

The cases "mutually reinforce each other," says Arthur Leonard, a New York Law School professor and an expert in gay-and-lesbian legal issues. "Having these two lawsuits gives us two bites of the apple. They are the premier litigation challenging DOMA at the present time." (Two other cases, one in California and another in Oklahoma, are considered to have less potential.)

It's almost certain that whichever side loses will appeal the decision, and that one or both of these cases will end up moving on to the First Circuit court of appeals. (Leonard points out that, historically, when the gay-rights side wins in lower court, the case is more likely to keep moving up the judicial ladder.)

As the challenges attract more attention, the public will learn more about the very real consequences of marriage law. This could, in turn, inform how people think about gay-marriage rights in general.

The legal action — especially GLAD's, which focuses on concrete applications and denials — is "really helping to highlight what some of these really tangible effects are of the Defense of Marriage Act," says Brian Moulton, chief legislative counsel for the Human Rights Campaign, a DC-based gay-rights organization.

"You have to remember there are many parts of the country where people have no experience of gay married people," says Bonauto. "This is shining a light on those" whose struggles with taxes, health insurance, Social Security, and after-death benefits are real and powerful examples of DOMA's everyday effects. "Those are things that will be new information to a lot of people . . . what married people look like and what their life stories are like."

Should the case(s) move all the way up the appellate chain to the Supreme Court (which would take several years), Bonauto thinks the public-relations effect would continue to be positive.

"Any time the Supreme Court strikes down a double standard related to gay people, it's a good thing," she says, showing that "we don't have first- and second-class citizens, and we don't have first- and second-class marriages."

Deirdre Fulton can be reached at

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