In court documents, the Justice Department makes it clear the Obama administration thinks the law is discriminatory and should be repealed. But the department, calling the law “constitutionally permissible,” said it has an obligation to defend federal laws when they are challenged in court.

The 1996 federal Defense of Marriage Act, known as DOMA, bars federal recognition of gay unions and denies gay couples access to pensions, health insurance and other government benefits.

The law 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.

Since then, six states have enacted laws or issued court rulings that permit same-sex marriage, including Massachusetts, Maine, Vermont, Connecticut and Iowa. New Hampshire’s law takes effect Jan. 1, 2010.

The Massachusetts 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. They argue that DOMA violates the equal-protection clause of the U.S. Constitution because it treats married gay couples differently than other married couples.

Beatrice Hernandez and Melba Abreu, plaintiffs in the lawsuit, have been married for five years, but they aren’t allowed to file a joint tax return, as heterosexual married couples can. Hernandez said they paid nearly $20,000 more in taxes between 2004 and 2007 than they would have if they had been able to file joint returns.

“It really is separate and unequal treatment,” Hernandez said. “When we were able to marry in 2004, we didn’t receive a different marriage certificate. We received one that was equal for all citizens here in Massachusetts.”

The Justice Department, however, argues 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 argued in its written response to the lawsuit.

“Congress may subsequently decide to extend federal benefits to same-sex marriages, and this Administration believes that Congress should do so. But its decision not to do so to this point is not irrational or unconstitutional.”

Gay & Lesbian Advocates & Defenders, the legal group that filed the lawsuit, said DOMA is an exception to a long history of the federal government deferring to determinations by the states as to what constitutes marriage.

“We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies,” said Gary Buseck, GLAD’s legal director.

A bill to repeal DOMA was introduced in the U.S. House of Representatives on Tuesday by U.S. Rep. Jerrold Nadler, D-N.Y., but has little chance of making it to a vote this year.

The bill, introduced by U.S. Rep. Jerrold Nadler (D-NY), a long-time supporter of equal rights for gays, has essentially no chance for a hearing or vote during this session of Congress, according to Frank. It is the last of eight bills of specific interest to the LGBT community to be introduced to this session of Congress, which is nearing the end of the first of its two years. And Frank, the de facto leader on LGBT-related measures in Congress, says four other bills come first.

“We have pending four major pieces of [LGBT] legislation which have a serious chance to pass,” said Frank Monday in a phone interview. Those, he noted, are the Matthew Shepard hate crimes bill, attached to a bill authorizing defense spending; the Employment Non-Discrimination Act (ENDA); a bill to give equal benefits to the partners of gay federal employees as provided to straight spouses; and a bill to repeal the military’s “don’t ask, don’t tell” policy.

The Nadler bill, said Frank, “has zero chance of passage, even out of committee. It’s a mistake.”

Frank’s problem with the bill isn’t just its timing on a crowded and unusually urgent Congressional calendar monopolized by health care reform, financial regulation reform, appropriations bills, and the other LGBT legislation.

“It’s a very controversial form” of the bill, he said.

 Nadler’s bill, the “Respect for Marriage Act,” (ROMA) is a simple two-page measure, seeking to do two things:

·     repeal both sections of DOMA –Section 2, which says no state can be “required” to recognize the marriage of a same-sex couple licensed in another state, and Section 3, which limits the interpretation of “marriage” for any federal purpose to only heterosexual couples; and,

·    add language that says “for the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.”

Frank says the latter clause abandons the strategy of “dealing with marriage state by state.” If a same-sex couple obtains a marriage license in Massachusetts and moves to California, the federal government would recognize their marriage in California.

Evan Wolfson, executive director of the national Freedom to Marry organization, helped write that latter provision, which has been dubbed the “certainty clause.”

“It’s called the ‘certainty clause,’” said Wolfson, in a phone interview after the press conference, “because it establishes certainty that your federal protections and responsibilities will remain with you no matter where you travel” as a same-sex married couple. “The federal government will have a consistent approach. And it’s not telling states what to do,” says Wolfson.

Frank concedes that it’s “a desirable goal,” but says, “we’re not remotely close to achieving it and it’s unwise politically.” For that reason, said Frank, he’s not one of the bill’s current 90 co-sponsors.

But doesn’t Frank’s refusal to co-sponsor the bill, even as a starting point for discussion, essentially kill the bill before it’s out of the chute?

“It does send a message that it’s a bad idea,” says Frank. “But I want to send a message.”

 Top priority for community

While the Nadler bill doesn’t have Frank’s support, it does have the co-sponsorship of two of Congress’ other openly gay members – Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.).

Joining Nadler and others at Tuesday’s press conference were some of the movement’s biggest leaders –Wolfson; Joe Solmonese, president of the Human Rights Campaign; Rea Carey, executive director of the National Gay and Lesbian Task Force; Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund; and Shannon Minter, legal director for the National Center for Lesbian Rights.

HRC’s website says its communications with the LGBT community around the country indicates repealing DOMA is “a top priority.” Some 50,000 people responded to the organization’s request for examples of how DOMA affects them negatively.

“We’re in this for the long haul,” said Solmonese, in a phone interview following Tuesday’s press conference. “This is a long term strategy.” He seems untroubled by Frank’s withholding of support.

“We have a difference of opinion about tactics,” said Solmonese.    

Perhaps, but Frank likens Nadler’s bill to San Francisco Mayor Gavin Newsome’s decision, in February 2004, to direct city officials to start issuing marriage licenses to same-sex couples even though a state law prohibited it.

“It’s an effort to make people in the community happy,” said Frank. “That’s not our job. We owe people our judgment.”

Some political observers have blamed Newsome’s tactic as off-putting and responsible for at least some of the vote to approve Proposition 8, which bans same-sex marriage, in California last November.

Frank says he thinks “the way we’ll win” repeal of DOMA is through the lawsuit filed by GLAD against Section 3 of the law.

Noticeably absent was the Massachusetts-based legal organization that has been leading the charge for same-sex marriage rights and against DOMA –the Gay & Lesbian Advocates & Defenders. But Carisa Cunningham, a spokesperson for GLAD, said the organization supports the bill.

“We just didn’t have anyone who could make it to Washington today,” said Cunningham.

And Nadler defends ROMA: “Mr. Frank knows better than anyone that our opponents will falsely claim that any DOMA repeal bill ‘exports marriage’ in an effort to generate fear and misunderstanding.  But the dishonest tactics of our opponents should not stop us from aggressively pushing to end this horrific discrimination now, as is the consensus of the nation’s top LGBT groups who all support this approach.”

Nadler says his bill “does not tell any state who it must marry or what marriage it must recognize under state law.”

“Our bill,” says Nadler, “allows states to continue deciding those questions, while ensuring uniform access to critically important federal responsibilities and rights that hinge on marriage and upon which all married couples should be able to rely.”

© 2009 Keen News Service

Repeal legislation to be introduced Tuesday has at least 76 House sponsors. A spokesman for the lead sponsor, Democratic Rep. Jerrold Nadler of New York, acknowledged that repealing the Defense of Marriage Act was not a priority for movement anytime soon.

The 1996 law bars federal recognition of gay unions, including the granting of Social Security survivor payments and other government benefits to couples. The law even bars same-sex couples from receiving the benefits in states that have legalized their marriage.

President Barack Obama pledged as a candidate to work for repeal. Last month, the president insisted he still wants to scrap what he calls a discriminatory federal marriage law, even though his administration angered gay rights activists by defending it in court.

Ilan Kayatsky, spokesman for Nadler, said the repeal was being introduced now primarily “to gain support and momentum and educate people.” Nadler chairs a Judiciary subcommittee that would consider a repeal.

Rep. Barney Frank, D-Mass., an influential, openly gay lawmaker, favors repeal but has not signed on as a co-sponsor of Nadler’s bill. Frank believes the legislation would have little chance of passage, because it would allow same-sex couples to take their partnership benefits across state lines, said spokesman Harry Gural.

The president of a gay advocacy group, the Human Rights Campaign, said Frank’s disagreement was about tactics, not the goal of repeal.

“We’re making a case for an ambitious bill, and I don’t have any illusions that it will be easy or happen overnight,” added the group’s president, Joe Solmonese.

There also has been no movement for repeal in the Senate, where it would be difficult to gain the 60 votes needed to break a filibuster.

Senator Edward Kennedy (D-Mass.), who fought for equal rights for gays on many fronts and was an early defender of people with HIV, died late Tuesday night, Aug. 25. He had been suffering from brain cancer.

“Our community has had no greater champion in Congress,” said David Smith, who worked as the senator’s Director of Communication from late 2003 to early 2005.

Smith, vice president for programs at the Human Rights Campaign, said credited Kennedy with taking on some of the community’s worst adversaries, including the late Senator Jesse Helms, during its toughest battles.

“From early days of AIDS crisis, he was there for us,” recalled Smith. “He was battling for us, taking on a then very powerful Jesse Helms, who wanted to see us in concentration camps. God only knows what would have happened if Senator Kennedy hadn’t been there.”

Elizabeth Birch, who was HRC president during many of those battles, recalled a “very intense” meeting with Kennedy and staff in which LGBT leaders “talked about the importance of having transgenders included” in the Employment Non-Discrimination Act (ENDA).

“He said, ‘We never intended to leave anyone behind and we won’t leave anyone behind’,” said Birch.

“The other hallmark of who he was,” said Birch, “was he supported gay marriage ahead of any of his peers –and, frankly, ahead of people a generation or two behind him in Congress. He was a man who, whenever he hit the limits of something, he would just keep trying.”

Kennedy was one of only 14 senators who voted against the Defense of Marriage Act (DOMA) in 1996. He did not argue for same-sex marriage, but rather against the attack on same-sex marriage.

“We all know what is going on here,” said Kennedy on the Senate floor during the DOMA debate. “I regard this bill as a mean-spirited form of Republican legislative gay-bashing, cynically calculated to try to inflame the public eight weeks before the November 5 election.”

“This bill is designed to divide Americans, to drive a wedge between one group of citizens and the rest of the country, solely for partisan advantage,” said Kennedy. “It is a cynical election year gimmick, and it deserves to be rejected by all who deplore the intolerance and incivility that have come to dominate our national debate.”

As author of ENDA, he led the debate in 1996 when the Senate came within one vote of passing the bill.

“We know that discrimination against gay men and lesbian women exists in this country today, Number 1,” said Kennedy. “Number 2, we know that there are no laws to protect them. Number 3, we know that the whole issue of gay men and lesbian women is an immutable condition. It is a condition of life.

“What we are trying to say is when Americans want to work and can work and do a job, they ought to be able to be judged on the job that they are going to do and not on one of these other factors,” said Kennedy. “We can free ourselves from discrimination against those gay men and lesbian women in the employment place.”

Chai Feldblum worked closely with Kennedy on ENDA, the Americans with Disabilities Act (ADA), to prohibit discrimination against people with HIV, and the Ryan White CARE Act, to provide needed care to people with HIV.

Feldblum recalled that, during the work on ADA, he held a meeting at his house with several of the key people working on the legislation and said he was “very focused on protection for people with HIV.”

“The bottom line,” said Feldblum, “was that he was our ‘go-to person’ with anything to do with gay rights. He was that person both because of who he was and the position he held.”

Current HRC President Joe Solmonese released a statement calling Kennedy the “greatest champion and strongest voice for justice, fairness, and compassion.”

“The loss to our community is immeasurable,” he said. “There was no greater hero for advocates of LGBT equality than Senator Ted Kennedy.”

A number of gay leaders said it would be difficult to fill the void in leadership on LGBT-related issues that has been left by Kennedy’s loss.

“We have our work cut out for us in terms of working with other [members of Congress], nurturing relationships with other champions,” said HRC’s Smith. Even as recently as the current fight to pass the Matthew Shepard hate crimes measure as part of the defense authorization bill, said Smith, Kennedy’s efforts have been critical.

“When it passes,” he says, “it will be because of Senator Edward Kennedy that for the first time, sexual orientation and gender identity will be part of a U.S. Civil Rights Code.”

© 2009 Keen News Service

Read what the gay blogosphere has to say about Kennedy.

The president said his administration’s stance in a California court case is not about defending traditional marriage, but is instead about defending traditional legal practice.

Justice Department lawyers filed new papers Monday seeking to throw out a lawsuit brought by a gay couple challenging the 1996 Defense of Marriage Act, or DOMA. Gay rights groups say that by doing so, the administration is failing to follow through on campaign promises made by Obama last year to work to repeal the law.

Department lawyers are defending the law “as it traditionally does when acts of Congress are challenged,” Obama said in a statement.

The Clinton-era law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.

Obama said he plans to work with Congress to repeal the law, and said his administration “will continue to examine and implement measures that will help extend rights and benefits” to lesbian, gay, bisexual, and transgender couples under existing law.

The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional – a standard practice of government lawyers.

The mixed message got a mixed review from Joe Solmonese, president of the Human Rights Campaign, a gay rights group.

“It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,” Solmonese said in a statement. “While they contend that it is the DOJ’s duty to defend an act of Congress, we contend that it is the administration’s duty to defend every citizen from discrimination.”

Walter Dellinger, a former solicitor general during the Clinton administration, praised Monday’s filing for striking “a delicate but appropriate balance between the government’s obligation to respect federal laws enacted by Congress and this administration’s policy and moral concerns about this particular law.”

The government’s previous filing in the case angered gay rights activists who supported Obama’s candidacy in part because of his pledge to move forward on repealing the law and the “don’t ask, don’t tell” policy that prevents gays from serving openly in the military.

The Justice Department is obligated “to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration’s policy preferences,” said department spokeswoman Tracy Schmaler.

“DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” according to the filing by Assistant Attorney General Tony West.

The administration also disavowed past arguments made by conservatives that DOMA protects children by defining marriage as between a man and a woman.

“The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality,” lawyers argued in the filing.

Monday’s court filing was in response to a lawsuit by Arthur Smelt and Christopher Hammer, who are challenging the federal law, which prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and benefiting from other federal rights connected to marriage.

Justice lawyers have argued that the act is constitutional and contend that awarding federal marriage benefits to gays would infringe on the rights of taxpayers in the 30 states that specifically prohibit same-sex marriages.

Earlier this year, Massachusetts became the first state to challenge the law in court.

According to Bajko’s story, Nadler felt the need to focus on Federal recognition of gay marriage first, and so his bill will not apply to civil unions or domestic partnerships.

Nadler felt that covering civil unions and domestic partnerships would complicate his bill too much, since the laws vary from state to state. His bill would repeal the ban on federal recognition of same-sex marriage, which he sees as a first step to overturning DOMA as a whole.

Read the full article at the Bay Area Reporter.

The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.

The lawsuit, filed in federal court in Boston, argues the act “constitutes an overreaching and discriminatory federal law.” It says the approximately 16,000 same-sex couples who have married in Massachusetts since the state began performing gay marriages in 2004 are being unfairly denied federal benefits given to heterosexual couples.

Besides Massachusetts, five other states – Connecticut, Vermont, New Hampshire, Maine and Iowa – have legalized gay marriage. Gay marriage opponents in Maine said Wednesday that they had collected enough signatures to put the state’s new law on the November ballot for a possible override.

The Massachusetts lawsuit challenges the section of the federal law that creates a federal definition of marriage as “a legal union between one man and one woman as husband and wife.”

Before the law was passed, Coakley said, the federal government recognized that defining marital status was the “exclusive prerogative of the states.” Now, because of the U.S. law’s definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments, the lawsuit says.

The lawsuit also argues that the federal law requires the state to violate the constitutional rights of its citizens by treating married heterosexual couples and married same-sex couples differently when determining eligibility for Medicaid benefits and when determining whether the spouse of a veteran can be buried in a Massachusetts veterans’ cemetery.

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

The Justice Department had not seen the lawsuit and cannot respond until it has a chance to review it, spokesman Charles Miller said.

The Defense of Marriage Act was enacted when it appeared Hawaii would soon legalize same-sex marriages and opponents worried that other states would be forced to recognize them.

President Barack Obama has pledged to work to repeal the law, although gay rights activists criticized the administration last month after Justice Department lawyers defended it in a court brief. White House aides said they were doing their jobs to support a law that is on the books.

This is the second lawsuit filed in Massachusetts challenging the law.

In March, the Boston-based Gay & Lesbian Advocates & Defenders claimed the law discriminates against gay couples and is unconstitutional because it denies them access to federal benefits that other married couples receive, such as health insurance and pensions.

In Maine, the Stand for Marriage Maine coalition said it took only four weeks to gather more than the 55,087 signatures necessary to put gay marriage to a vote.

The Maine law to legalize gay marriage had been scheduled to go into effect Sept. 12. It will be put on hold after the signatures are submitted and certified by the secretary of state’s office. Voters will then decide in November whether it should stand.

But did GLBT citizens not expect the extraordinary from this new administration? Wasn’t that the promise made repeatedly during that lengthy primary process?

We’ve seen bold, extraordinary steps from President Barack Obama and his administration on other issues, in other arenas, but last week’s offering to GLBT federal employees was meager, not extraordinary.

The official White House Pride proclamation fell far short of even ordinary — a bland, empty statement from a man known worldwide for eloquent and convincing pronouncements.

And the Justice Department’s recently filed defense of the Defense of Marriage Act? The same old same old — an indefensible defense of an indefensible law that yes, once again compared same-sex marriage to incestuous family relationships.

Same-sex couples can now legally marry in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont, and a number of same-sex couples legally married in California before Proposition 8 was passed and upheld by the state’s high court.

Those couples have access to the same state rights and benefits of married heterosexual couples in their states, but not to the more than 1,000 federal rights and benefits, including, perhaps most importantly, the right to Social Security survivors’ benefits.

This is because the Defense of Marriage Act, which defines marriage as the union of a man and a woman, prohibits the federal government from recognizing same-sex marriages and allows states to refuse to recognize such marriages from other states.

DOMA states, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The Justice Department is strongly defending DOMA against a legal challenge brought by a same-sex couple married in California last July.

Arguments have been made that the couple’s case is weak, that it is not the best suit to advance through the courts and take down DOMA.

Maybe so, but Justice’s intolerable brief defends banning federal benefits for married same-sex couples claiming that to continue to do so is cheaper for the government; that DOMA is a policy of government “neutrality;” that DOMA is consistent with due process and equal protection principles guaranteed in the Constitution.

Justice argues that it is OK to deny federal marriage benefits from gay married couples because heterosexual marriages are “the traditional and uniformly-recognized form of marriage” and that DOMA protects federal taxpayers “in other states to subsidize a form of marriage that their own states do not recognize.” In other words, Justice has interpreted the quest for equal protection as a quest for freebies of some sort.

I’ll remind you that Obama once called DOMA “abhorrent,” a characterization that could be applied to Justice’s brief.

During his presidential campaign, Obama said he would be a fierce advocate of DOMA’s repeal. There is nothing on the record to suggest he has done anything to dump DOMA.

So now, what can we expect from the administration in the next week, when the Justice Department is due to file its response in a suit brought by the Gay and Lesbian Advocates and Defenders on behalf of married same-sex couples in Massachusetts?

Sadly, I think we cannot expect anything extraordinary. Sadly, I think we can expect the same old same old discrimination. To quote White House spokesman Shin Inouye: “Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”

The past few weeks have been exhilerating for all of us in the LGBT community who pay attention to politics. The exhileration hasn’t all been from positive sources– disappointments like the DOJ’s memo on DOMA, President Obama’s lackluster federal employee rights order, and the DNC’s callous handling of gay outrage have hit hard– but it has been exhileration. The LGBT community has been talking about policy and politics, people are paying attention, and apathy seem less cool (and less widespread) than it did a few weeks or a month ago.

I’m not being naive. In order to force real change, we’re going to need sustained outrage, sustained protest, sustained attention. And that’s tough to generate.

But getting results, however small, helps.

And the Department of Justice inviting LGBT legal groups to a meeting to start discussions on an upcoming case that challenges the constitutionality of DOMA? That’s a direct result of the community’s outrage to the first DOMA memo, and it’s an important result.

It is anticipated that the groups invited by the DOJ include Lambda Legal and GLAD (Gay and Lesbian Advocates and Defenders). The case they’re discussing directly challenges Section 3 of DOMA, which states that for the purposes of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” Given the relatively slow progress on repealing DOMA legislatively, a legitimate legal challenge to Section 3 of DOMA could be an important development. Including smart, pro-equality legal minds in the discussions is progress for the Department of Justice. So kudos to all who applied pressure after the first disastrous DOMA memo. Let’s keep it up.