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July 17, 2009


Federal DOMA faces three legal challenges

Boston--The federal “defense of marriage act” is now under attack by three lawsuits--including one from a state government--and by the president who signed it into law.

Former president Bill Clinton, who signed the 1996 law defining marriage as between one man and one woman and saying that states do not need to recognize same-sex marriages performed in other states, now says he supports full marriage equality.

Speaking at the Campus Progress National Conference June 8, Clinton said he is “basically in support” of same-sex marriage, reversing the position he held as president.

Clinton had previously signaled that his opinion on the matter was “evolving.”

With that, Clinton became the highest profile Democrat in a long line who have moved toward marriage equality in the past year.

A Gallup poll released in May found that the majority of Americans still oppose same-sex marriage, but a majority of Democrats, 55 percent, now favor it.

Still, legislative attempts to repeal DOMA are not expected any time soon, despite President Barack Obama’s campaign promises to tackle it.

But three lawsuits might.

The most recent, and perhaps the strongest, was filed in the U.S. District Court in Boston by the Commonwealth of Massachusetts on July 8.

The suit alleges that even though same-sex couples marry in Massachusetts, DOMA “denies essential rights and protections” because it “interferes with the Commonwealth’s sovereign authority to define and regulate marriage.”

“As applied to the Commonwealth and its residents, DOMA constitutes an overreaching and discriminatory federal law,” the suit says.

The suit challenges the federal one-man-and-one-woman definition of marriage,  seeking to modify federal law so that Massachusetts can regulate marriage as it sees fit.

It does not affect states like Ohio which also prohibit same-sex marriage.

The suit lists benefits including Social Security, pensions, health benefits and taxes as areas where married Massachusetts couples are being denied access by the federal law, and it points out that DOMA resulted from animus toward gay and lesbian people.

Legal commentators admire the approach taken by Massachusetts Attorney General Martha Coakley, as the suit challenges DOMA from a conservative perspective, and makes a conservative argument: states’ rights.

The second suit was filed by Mary Bonauto of the Gay and Lesbian Advocates and Defenders of Boston. This is the legal team that won marriage equality in Massachusetts in 2004.

It is is the same U.S. District Court in Boston. It was filed March 3 and will be amended later this month. The Justice Department has until September 18 to respond.

The plaintiffs are eight same-sex couples and three surviving spouses, all married in Massachusetts but unable to access federal rights and benefits due to the 1996 law.

“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,” according to the complaint.

“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,” the complaint continues.

The plaintiffs also argue that the third section of DOMA, the part that defines marriage for federal purposes, violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and in the issuance of passports.

Additionally, they contend that section is an unprecedented intrusion by the federal government into marriage law, always considered the province of the states.

Like the other Boston suit, this one does not ask the court to invalidate DOMA in its entirety. It does not challenge Section 2, which gives the states the right to decide if they will recognize same-sex marriages from other states.

The third suit pending is the California challenge that touched off a firestorm of criticism last month when the Obama administration filed its brief that compared same-sex marriage to pedophilia and incest.

The suit alleges discrimination by a couple because DOMA does not allow them to be considered married in states they travel to.

All three suits will likely be heard by the U.S. Supreme Court within the next few years, if DOMA is not repealed first.




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