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Loading ...Gay couples blast federal Defense of Marriage Act
11.17.2009 5:31pm EST
(Boston) Gay married couples suing the government over a federal law that doesn’t recognize same-sex unions say there is “no legitimate or plausible” reason for having a federal definition of marriage that excludes gay couples.
The lawsuit was brought by seven gay couples and three widowers, all of whom were married in Massachusetts after it became the first state in the country to legalize gay marriage in 2004.In court documents filed Tuesday, the couples say the federal Defense of Marriage Act (DOMA) violates the equal protection clause of the U.S. Constitution because it denies them access to federal benefits given to other married couples, including pensions, health insurance and the ability to file joint tax returns. They argue that the law “eviscerates” the historic power of the states to establish criteria for marriage.
“DOMA marks a stark, and unique, departure from the respect and recognition the federal government has long afforded to State marital status determinations,” lawyers for Gay & Lesbian Advocates & Defenders argue in a written response to the U.S. Department of Justice motion to dismiss the lawsuit.
In a court filing in September, Justice officials made it clear that the Obama administration thinks the law is discriminatory and should be repealed. But the department said it has an obligation to defend federal laws when they are challenged in court.
The law, enacted in 1996, was passed by Congress at a time when it appeared Hawaii would become the first state to legalize same-sex marriage. Opponents worried that other states would be forced to recognize such marriages.
In addition to Massachusetts, gay marriage is now legal in Vermont, Connecticut and Iowa. New Hampshire’s law takes effect Jan. 1. Earlier this month, voters in Maine repealed a state law that would have allowed same-sex couples to wed.
A spokeswoman for the Justice Department had no immediate comment on the latest court filing by the same-sex couples.
In its written response to the lawsuit, filed in September, the Justice Department argued that there is no fundamental right to marriage-based federal benefits and says Congress is entitled to address issues of social reform on an “incremental” basis.
“Congress is therefore permitted to provide benefits only to those who have historically been permitted to marry, without extending the same benefit to those only recently permitted to do so,” the government said.
The couples who brought the lawsuit are asking U.S. District Judge Joseph Tauro to reject the government’s motion to dismiss the lawsuit and to find in their favor without a trial. Specifically, the group is asking for a ruling that the section of the law that excludes same-sex couples from federal marriage-based benefits is unconstitutional, as applied to the couples who brought the lawsuit.
Such a ruling would mean that those couples would be eligible for the benefits they have been denied. The ruling also would likely extend to other Massachusetts couples.
“If we won, then it would be unconstitutional to deny access to these programs to other married same-sex couples in Massachusetts,” said Mary Bonauto, one of the attorneys representing the couples.
It would take a ruling from the U.S. Supreme Court or an act of Congress to strike down the law.
A bill to repeal the law was introduced in the U.S. House in September, but has little chance of making it to a vote this year.
The states rights argument exposes conservatives for hypocrisy.
States Rights my Aunt Fanny. Since when do they supercede human rights?
matt87, actually it only exposes the false conservatives fighting for theocratic rule.
No conservative is against equal rights. No conservative would ever, ever vote for DOMA.
No conservative would be anti choice for that matter.
In fact, Scalia comes off looking like quite the liberal, in his dissent in Lawrence he made some twisted argument that the government does have a valid role in controlling what we do..sounding very much like the liberal advocate wanting to ban smoking or alcohol, or the liberal mindset that says government, not the people, know best.
These people are very bad conservatives.
The republicans used to be conservative, for states rights, small government, strong military, strong business climate.
But then they needed the religious right to win elections, and in came all these liberal ideas.
At least that was what I learned in school. I think the only thing conservative about them is their resistance to change…not wanting to accept society has moved beyond the distaste of us.
But really when I look at the current political landscape, it is upside down. I think we have bastardized these terms to the point they don’t mean what they used to.
How could a whole group advocating for a theorcracy be conservative.
At least this conservative is for equal rights, for small government, for open and free abortions (reduce the welfare state) for free association including marriage and for letting Americans decide what is best for them….a truly American conservative value.
I just can’t go around telling people I’m conservative anymore because they associate that with bigotry and other beliefs I do not hold.
I think we need better civics education in school. I was taught this, it was part of the curriculum, but when I talk to people conservative = old values, liberal = new, open, do what you want values.
Maybe those are social definitions but they certainly are not political definitions.
True conservatives would be appalled that someone on the supreme court would be for the government contolling sex.
True conservatives would have been appalled at Bush appointing so many cultists to the bench.
Maybe this is why jurists appointed by “liberal” presidents always seem to end up fairly conservative and vice-versa. Its a confusion over defnitions, it seems.
DaveW, the only thing “conservative” stands for today is theocracy and corporatism.
I’m a bit curious when it used to be anything different and who the true conservatives are since I never see examples cited.
“The republicans used to be conservative, for states rights, small government, strong military, strong business climate.”
Both parties are for States rights, but only when it’s convenient.
Blegh, it posted before I was finished…
DaveW, the only thing “conservative” stands for today is theocracy and corporatism.
I’m a bit curious when it used to be anything different and who the true conservatives are since I never see examples cited.
“The republicans used to be conservative, for states rights, small government, strong military, strong business climate.”
Both parties are for States rights, but only when it’s convenient. As far as I’m aware, Republicans were never for small government except when it was convenient (for corporations and religionists). They’ve always been and still are for the military since that benefits corporations. And, of course, they are for a good business climate, but only for a small group that can reap the benefits before the short-term benefits go sour and wreck things for everyone else.
This lawsuit and the Prop 8 Lawsuit are ill advised, i very much doubt that there is a plausible majority on the supreme court to overturn a state ban on gay marriage or doma. Roberts, Scalia, Thomas, and Alito won’t vote to overturn, and i doubt Kennedy will either. The only result from these lawsuits is for legal precedent to be written that further entrenched the status quo…..
Remember all who voted in these Republican Theofascists…
in a Theocracy… bigotry, including genocide is legal.
Welcome to Germany folks.
Eventually, all this crap is going to be history. It offends the hell outta me that three widowers are forced to continue this battle, but I am very grateful to them. The bigots and social fossils who have perpetuated a violation of the Constitution will have history make asses of them. This is a matter of time–but like many other people, here and everywhere in the country, I see no reason and no justification to still be considered not good enough.
I have no doubt that the current court doesn’t want the case if they can avoid it. Why? How do you come up with a way to justify selective nullification of the Full Faith and Credit clause? How do you justify Federal incursion on states’ rights, especially when the historical trend has been that the Feds require greater equality, not less? Upholding DOMA, especially argued on any specific point, pretty much drives a giant hole into existing civil rights law. Now you can have a separate and lesser standard; now you can exclude this group or that. Upholding DOMA will very likely have some nasty repercussions for both the GOP and the Catholic Church, not to mention the anger at Dems for allowing gay civil rights to essentially come to a vote in SCOTUS.
The broadly-accepted descriptions of liberal and conservative are being shaken up in the US. Most people seem to have a preference for a government of social liberalism (perhaps better described as pragmatism) and fiscal conservatism (where a government can explain how its budget is balanced in fact, not just in its own fiction-spinning jargon). In California, for example, neither party is willing to match the state revenue structure to the services provided–because both parties have been buying off voters. In Ohio and Michigan, significant segments of the Dem caucuses have been pushing for more restrictions on abortion at the same time they demand still more Federal money to fix their long-term fiscal problems–never mind that Ohio’s largest county, Cuyahoga, has lost 400,000 people in the last 40 years, yet it still manages 60 municipalities, 30-odd school districts, 12 municipal court systems, 9 library systems, and at least 3 regional agencies. Why should anybody help a place where people insist on over-governing themselves to the point of emptying a major urban area?
Oddly enough, if the Court does overturn DOMA, it could have worse consequences for the Dems than for the GOP. Obama seems to have taken lessons from the ghost of Strom Thurmond in how to be a sly obstructionist. Every advance we’ve had in his administration has generally been no thanks to him. With the gay issue out of the way, the GOP can say they have to deal with the cards SCOTUS dealt them, then proceed to remind voters that the Dems delayed just as long as the GOP did. Obama is the first black President, and there will be MANY Republicans who will take their victory in reminding the public that Obama was on the wrong side of history–a black President who had to be forced by the courts to broaden the law, no different than any Republican candidate on the scene.
I’ve read through the text of the Defense of Marriage Act several times, and in spite of my best efforts to see it otherwise, I see it as an infringement on states’ rights by defining the terms “marriage” and “spouse” in a federal context. Yes, there is language that specifies that no state/jurisdiction owes any other state/jurisdiction respect for their marriage laws, but the federal definitions of aforementioned words strike me as being patently against states’ individual rights. The way I read it, DOMA effectively prevents any individual state from defining “marriage” or “spouse” in its own legal context. Secondly, DOMA was passed in response to legislation that was considered in the state of Hawaii; it was an over-the-top response to one piece of legislation that had the potential to be passed by one state. From its very conception, DOMA has never been anything other than a blatantly discriminatory and patently un-Constitutional piece of legislation.
A quick word about democracy: the power of any law is directly corollary to the will of the person/people who is/are in a position to enforce it. Additionally, there is a social respect for not just DOMA as a law, but there is a social respect for the discrimination that it embodies. I won’t say that America hates The Gay (because I don’t think that’s entirely accurate), but on a policy level, there is a serious disconnection between any given politician or voter’s personal beliefs and the reality that we as citizens must live with.
@bystander: I love it when non-lawyers state that the challenge to DOMA and the federal Prop 8 law suit are ill-advised. Both of these law suits are extremely appropriate and are well-argued. We’ll see what happens in January and February when these cases get to court. In the meantime, non-lawyers are best advised NOT to advise lawyers on what to do.
Don Gaudard
Professor of Law Emeritus
re: bystandard. You sound like a certain moron in the HRC who says the same thing and that we should wait (and as long as he is President of HRC, I’ll have nothing to do with them). So when will be the right time? I’m a senior citizen. I’ve been waiting a long time and probably don’t have a whole lot of time left. Others before waited all their lives without seeing equality. I, and many others like me, are sick of waiting!
As DonG pointed out, now IS the time to attack the anti-gay legislation that has been foisted upon us before they become entrenched by time!
I’m rather hoping that the intention of the Obama Justice Department is to continue to make the same old tired arguments in support of DOMA. The justifications for it are of course ludicrous on their face and I think they actually know this.
On the other hand, that will not necessarily prevent the Justices from upholding DOMA anyway, based upon their prejudices rather than on any firm legal footing. It’s not as though that’s never happened before.
GLBT people pay taxes and are contibuting members of society, therefore as taxpayers, GLBT should receive the same benefits other taxpaying American citizens. Historically GLBT people have paid their fair share of taxes, yet did not receive any benefit. This is fundamentally unfair, especially in light that GLBT people do not get the marriage tax break, resulting in years of GLBT people overpaying taxes. Those who pay taxes to the federal government deserve the benefits that those tax dollars provide.
I do not like the fact that I not only subsidize heterosexuals, their families, their schools – but also through my tax dollars, I also subsidize churches, including anti-gay churches in this society. There are very few things that the taxpayers of other demographics do to provide much of any benefits to me.
GLBT people pay taxes and are contibuting members of society, therefore as taxpayers, GLBT should receive the same benefits other taxpaying American citizens. Historically GLBT people have paid their fair share of taxes, yet did not receive any benefit. This is fundamentally unfair, especially in light that GLBT people do not get the marriage tax break, resulting in years of GLBT people overpaying taxes. Those who pay taxes to the federal government deserve the benefits that those tax dollars provide. I do not like the fact that I not only subsidize heterosexuals, their families, their schools – but also through my tax dollars, I also subsidize churches, including anti-gay churches in this society. There are very few things that the taxpayers of other demographics do to provide much of any benefits to me as a GLBT person.
As a democratic republic, the power of the people (democracy or will of the people) is balanced by leadership of the republic – otherwise as a nation, we are subject to tyranny of the majority. The will of the people does not establish abolutist law, no should it ever.
Polygamy is a different issue, and a different agena and has nothing to do with same sex marriage except in the minds of the “slippery-slope” speculators. Allowing sex sex marriage per se, does nothing to advance the cause of polygamy, which is a completely different issue.
1967 Loving vs. Virginia established that marriage cannot be restricted due to a states personal prejudice. Individual rights are not something that are given then taken away, and this also establishes states rights, in which DOMA is an example of Federal Govt overreach.
Single couples and Indians elect to pay their fair share of taxes. Since Polygamy, Pedophilia, Incest, Rape are is illegal, then they would be incaracated or no longer paying taxes. Again these are separate arenas, and it is insulting to make this comprison. These represent illegal acts, and 2003 Texas v Lawrence legalized consentual same sex relationships. Please stop beating this worn out argument to death. You are comparing the people who do little or nothing to contribute to society with those who work to destroy the lives of individuals and society and claiming this is a fair comparison due to your personal harbored prejudice. I will not discuss or entertain specualtive discussion about how gay supposed destroy the “moral fiber” of society when there are millions of living examples, such as myself, who are contributing, productive members of society who should never be compared to those who commit crimes. This is a major insult and I will not continue this converasion as you arguments are only meant to dehumanize GLBT people to the lower common demoninator.