The Justice Department is at odds with Massachusetts – the first state to allow gay marriage – over a 1996 federal law defining marriage as a union between a man and a woman.

Massachusetts sued in July, saying that law is discriminatory and deprives gay couples in the state of some federal spousal benefits.

The Obama administration agrees the Defense of Marriage Act, or DOMA, is discriminatory and wants it repealed, but says it has an obligation to defend laws enacted by Congress while they are on the books and can be reasonably defended.

The law “does not prohibit gay and lesbian couples from marrying, nor does it prohibit the states from acknowledging same-sex marriages,” according to the court filing by Assistant Attorney General Tony West.

Massachusetts, the filing continues, is trying to claim individuals have a right to federal benefits based on marital status.

“There is, however, no fundamental right to marriage-based federal benefits,” according to the 36-page filing.

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.

Massachusetts is the first state to sue the government over the DOMA law. Some gay couples have filed their own lawsuits challenging the law, but this case is unique in pitting a state against the federal government over the issue.

Justice Dept. spokeswoman Tracy Schmaler said any state “can allow gay and lesbian citizens to marry and can make its own decisions about how to treat married couples when it comes to state benefits.”

“Massachusetts is not being denied the right to provide benefits to same-sex couples and, in fact, has enacted a law to provide equal health benefits to same-sex spouses,” she said.

In earlier filings, the government has sought to dismiss the DOMA lawsuits brought by individuals.

The Massachusetts case could also have implications for Democratic Party politics. The Massachusetts Attorney General, Martha Coakley, is trying to win the Senate seat of the late Edward Kennedy, at the same time her office is leading the lawsuit against the Democratic administration on the issue of gay rights.

The lawsuit brought by Massachusetts says the approximately 16,000 same-sex couples who have married since the state allowed it in 2004 are being unfairly denied federal benefits given to heterosexual couples.

Those benefits include 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.

Besides Massachusetts, five other states – Connecticut, Vermont, New Hampshire, Maine and Iowa – have legalized gay marriage.

Kirk was a close friend of Kennedy and served as his special assistant in the Senate in the 1970s.

But few LGBT leaders know much about Kirk regarding LGBT civil rights measures. Some remember that, in 1985, as chairman of the Democratic Party, Kirk declared that he didn’t think gay civil rights matters should become a priority for the party –characterizing them as “frivolous” issues. That remark, naturally, drew protests of anger from the community.

Long-time gay Democratic activist David Mixner says he doesn’t think the remark counts for much, given the time. Kirk’s remark came as Democrats were analyzing their loss in the presidential campaign of Walter Mondale v. incumbent President Reagan of every state but Minnesota and the District of Columbia. Under Kirk’s chairmanship, from 1985 to 1989, the Democratic party’s platform language in support of gay civil rights shrank considerably.

Mixner says Kirk was “instrumental, along with Kennedy, in fighting many of the” hostile amendments proffered by then Senator Jesse Helms. And, Mixner said, Kirk was “fantastic” on efforts to pass a federal non-discrimination bill for gays.

Hilary Rosen, another long-time gay Democratic activist, says her experience with Kirk has been “very good.”
“I think he takes his Kennedy legacy responsibilities really seriously,” said Rosen. “I know he cares about our issues and I know he would vote just like Senator Kennedy did, would have.”

“Unfortunately, he won’t have the leadership position that Kennedy did,” said Rosen.

Kirk has big shoes to fill now, given that Kennedy was widely seen as the Senate’s strongest champion on LGBT civil rights and HIV matters. Kirk’s appointment came by way of another staunch gay civil rights supporter – Massachusetts Governor Deval Patrick.

But Kirk has pledged to hold the seat only until Massachusetts voters elect a new senator, during a special election in January. His appointment helps the Democrats hold onto an important filibuster-proof majority of 60 in the Senate.
© 2009 Keen News Service

Senate President Therese Murray, a Democrat, said Tuesday that she supports the bill and believes there are enough votes to pass it.

Republican lawmakers have twice delayed action on the measure. They opted not to block it for a third day.

If approved, the bill would require a final vote in both chambers Wednesday before heading to Gov. Deval (deh-VAHL’) Patrick. The House gave initial approval last week.

Patrick supports the measure and could name an appointment when he signs the bill.

The appointee would serve until voters pick a permanent replacement Jan. 19 special election.

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.

It was an easy set up. Chicago Tribune columnist Steve Chapman contacted thinkers and writers who have penned a lot of words on the ills of gay marriage and asked them to make predictions of what social problems will happen in Massachusetts, Connecticut, Iowa, Vermont, Maine, and New Hampshire now that those states have marriage rights.

You would think that given an opportunity to warn of the apocalypse would have these folk jump at the chance, but alas heavy hitters like Maggie Gallagher and Stanley Kurtz demurred. I’m surprised at Kurtz and will give him  a pass. He is the only marriage rights foe I can think of who does not come from the topic with anti-gay animus.

David Blankenhorn, president of the Institute for American Values and author of “The Future of Marriage,” nibbled at the bait, but declined to give any specific predictions.

“I disagree with those who say it will have no impact at all,” Blankenhorn said. “But beyond that, I don’t think you can say.”

Proclaim same sex marriage will destroy the country but you can’t tell me how. Riiiiiight.

Those in favor of marriage rights played along.

M. V. Lee Badgett, an economist at the University of Massachusetts Amherst and author of  “When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage,” made this observation:  “In Europe, there’s no evidence that patterns have changed for marriage, divorce or non-marital births because of same-sex marriage or registered partnerships.”

I’m disappointed in the anti-gay marriage team. You would think after Chapman put down the gauntlet,  they would have swung for the fences.

And you wonder why we are winning the debate.

Post-script: this really shouldn’t be added but Gallagher did respond with some weak mess. Come on gurl. You can do better than people who don’t like same sex marriage will feel uncomfortable.

Health care reform. Two wars (you all better be reading the articles of Michael Yon), an economy that gives everyone the shakes. Given all this the media kept its eye on one word used by President Barack Obama in his most recent press conference.

On Wednesday night, the president was asked about Henry L. Gates’ run in with the Cambridge police. He admitted his bias upfront, described the incident, and noted Cambridge officers “acted stupidly.” The press jumped on that word and to hear some tell it Obama has something against the police.

Getting stupid on Obama’s use of the word stupid is part of the whole “give the police the benefit of the doubt” ethos. No one denies police work is a difficult job, filled with hazards of the highest order. However, police do make mistakes and often times act without thought. Don’t believe? Ask Chad Gibson what he thinks about the perfectibility of the police. If you don’t trust him what about Ryan Moats? He plays professional football and was pulled over by an officer. His crime? Rolling through a red light. Why? his mother-in-law was dying.

Okay, Moats asked for the officer’s abuse. He wasn’t being respectful enough to the cop,  who at one point in the conversation says “I can screw you over.” Want another example? How about the Oakland policeman  who killed a man on a train platform. Some of you will argue the guy didn’t follow the officer’s orders like a good citizen should. Well Oscar Grant was lying face down on the ground, but  Officer  (now ex) Johannes Mehserle pumped bullets in him anyway. Can’t wait to see how that is justified!

For the record and it irks me this has to be said,  but I know how some play here at 365: there is no suggestion from me the man who arrested Gates, Sergeant James M. Crowley, is a racist. From all accounts he is good at his job and a decent enough fellow. Yet, even after reading  his report a few times (that has been contradicted by Gates), I’m still confused why he felt the need to arrest the professor  in his house (and yes Virgina: the porch is part of the house).

It’s  hypocritical of  me to dog out the media about “Gate-gate” as I blather on about it also, so I’m done. However, this has to be said. While the Cambridge kabuki is entertaining, it  keeps us away from our serious law and order troubles. I’m willing to bet Crowley, Gates, and Obama would all agree on that.

Here is what you need to know about my bias in this story. There is a picture of Henry Louis Gates on my wall. He is standing at a lectern; I’m behind him and just introduced him at a high-school assembly (for a number of years I corrupted young minds as an English teacher).

My introduction of the professor, who had just accepted a position at Harvard University, was the type of claptrap you get from folks who fawn a bit too much. I have a Gates section in my book collection and can’t think of a time when I didn’t defend him (for those not in the know, Gates is a controversial figure to a few African-American Studies scholars).

With my preconceptions out in the open here is the tale: Gates was arrested last week for thinking he could be “loud and tumultuous” in his own home. After returning from China, where he was filming a documentary for PBS, the scholar gets to his home door. It’s not working and he is leaning into it to get it open, with the assistance of his cab driver. A neighbor sees this, is worried a crime is being committed and calls the police. When an officer arrives, Gates is on the phone calling the leasing agency about the broken door. The constable demands the professor come outside. Gates declines. The policeman enters the home, but even after proving he was in the right place, Gates still gets the handcuffs.

According to the police report, Gates comes off as uncooperative. He yells at the officer and accuses him of racial bias. Some will say this whole incident is Gates’ fault. If he had only followed police orders, everything would have turned out fine. The taking orders from the police line works for a small-time political blogger (freelance at that); however, a Harvard scholar, with books and such behind him, has the right to get funky when his very existence is called into question after he gets home from a trip. Sure that standard should apply to everyone, but we live in a world that rarely matches our rhetorical skills.

The debate about this will more than likely turn predictable. Those convinced America is now in some post-racial hue, will see this as an unfortunate encounter that could have been defused. Others, and I include myself in this camp, will marvel that even a black man with a PhD has to account for his status. In his own home (walking the streets is a whole different matter). Freedom papers anyone?

UPDATE: The charges against Gates have been dropped. The professor and the Middlesex District Attorney’s office issued a joint statement calling last week’s mess “regrettable and unfortunate.”

UPDATE 2: Gates is interviewed by The Root (he is the site’s editor-in-chief) and contradicts much of the police report. Says it was impossible for him to have yelled at the officer due to “a severe bronchial infection” he contracted in China.

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.

Requirements for marriage licenses vary from state to state, and couples  determining where to get married can find it baffling. Here’s a state-by-state equal marriage guide:

Connecticut:

The “Constitution State” followed Massachusetts  on Nov. 12, 2008, in allowing same-sex marriage. On Oct. 1, 2010, all existing civil unions will be automatically transformed into marriages.

* Where: Connecticut allows couples from out-of-state to get married, though they must apply for a license in either the town in which one of the individuals lives  or in the town in which the couple plans to marry. Couples can get the license from a local vital records office.
* How: Both partners must be present and must apply for the license in person.
* Out of state couples: Connecticut allows non-residents to get married.
* Waiting period: None.
* Cost: $35, cash only.
* ID: In addition to a photo ID (divers license, visa, passport, or military ID), those wishing to get a license will need to know their social security number, their mother’s maiden name, their parent’s birthplace, the date and location of the wedding, and the contact information of the wedding officiant.
* Other: The license expires after 65 days.

Iowa:

As of April 27, 2009, Iowa allows  gay residents and non-residents of the state to get married.
* Where: Couples should contact the county clerk’s office in the city they live in or wish to get married in to find out where to apply for a license.
* How: Both partners wishing to get married must be present when applying for the license.
* Out of state couples: Couples from out of state are allowed to marry in Iowa, though couples should contact the county clerk’s office to make sure no additional information is needed for non-residents.
* Waiting period: Iowa requires a three-day waiting period.
* Cost: $30, cash only. This does vary from county to county.
* ID: Along with a photo ID and social security information, Iowa requires one witness over the age of 18 be present when applying for the license.
* Other: Licenses are valid for six months.

Maine:

Though the state passed an equal marriage bill on May 6, 2009, the law will not go into effect until Sept. 14. A  people’s veto could prevent the law from taking affect – conservative activists are working to overturn the law now.

* Where: Couples should contact the local county clerk office to find the location of the town office where they need to get their license.
* How: Both partners must be present at the town office in order to get a license
* Out-of-state couples: Out-of-state residents can apply in any city or town office in the state;  it does not have to be in the same town as the wedding.
* Waiting period: None.
* Cost: $10 per person, cash only. Couples must also pay the cost of the certified documents, which varies.
* ID: A photo ID may be required, along with social security information.
* Other: The license is valid or 90 days, and no blood tets are required.

NEXT PAGE: Massachusetts, Vermont and New Hampshire

“It will be a selling point when it comes to trying to lure people with same-sex partners who are being wooed for a job,”  M.V. Lee Badgett, a University of Massachusetts economist who studies gay and lesbian issues, told Reuters.

Gay and lesbian couples who are part of the “creative class” – highly educated professionals, entrepreneurs and artists – were 2.5 times more likely to move to Massachusetts in the three years following the approval of same-sex marriage, according to a study released in May by the Williams Institute of the University of California.

The relocating couples were more likely to be younger and female than before same-sex marriage was approved.

Even straight members of the “creative class” regard states with marriage equality as more appealing places to live.

“It broadly suggests you have an environment in which people who are seen as different are accepted,” said Gary Gates, the UCLA demographer  and the lead author of the study.

See the full Reuters story here.