New Challenges to DOMA

Two recently filed suits, one in Connecticut and one in New York, claim that the United States, by relying on the Defense of Marriage Act, codified at 1 U.S.C. ' 7 (DOMA), to deny the validity of same-sex marriages, violated the constitutional rights of the plaintiff gay and lesbian married couples. These New York, Connecticut, Vermont and New Hampshire plaintiffs are putting the 1996 law on the defensive once again, following the successful challenge of DOMA in two cases heard last year by the U.S. District Court for the District of Massachusetts ' Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 7/8/10) and Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass., 7/8/10).

A Lifetime of Commitment, a Two-Year Marriage

The plaintiff in the New York case, Windsor v. U.S., 10 cv 8435, is Edith Schlain Windsor. She is the widow of Thea Spyer. The two had a 44-year relationship, which Windsor characterizes in her complaint as a 40-plus-year engagement followed by two years of marriage. The marriage was delayed by the fact that marriage for same-sex couples was prohibited for most of the term of their relationship, but they were finally able to legally marry in Canada in 2007.

The State of New York now recognizes the marriages of same-sex couples legally performed in other jurisdictions, though such unions still may not be legally entered into within the State. Because of DOMA, the United States does not. (DOMA's ' 3 prohibits the federal government from recognizing the marriages of same-sex couples who are considered legally married in their own states and restricts the federal government's ability to grant those couples the federal benefits other married couples enjoy.) This discrepancy left Windsor, the beneficiary of Spyer's estate, with a costly problem: She was forced to pay federal estate taxes in excess of $350,000. “In other words,” states the complaint, “Edie's inheritance, unlike the inheritance of a widow who had been left everything by her deceased husband, has been significantly reduced by the estate tax. Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four year committed relationship.” The plaintiff seeks to recover the taxes she says were illegally collected from her in violation of the U.S. Constitution. She is being represented by attorneys with the American Civil Liberties Union.

Plaintiffs in Three More States Cry Foul

Pedersen v. Office of Personnel Management, 10 cv 01750, currently encompasses the complaints of four same-sex married couples, residing in Connecticut, New Hampshire and Vermont.

One plaintiff claims she was unlawfully denied family leave to care for her injured wife. Another is a widower who was denied survivor benefits and Social Security death benefits. Some plaintiffs claim their spouses should have received benefits under federal health care coverage programs but were unlawfully denied that right. The plaintiffs are represented by the Gay and Lesbian Advocates and Defenders (GLAD), which says that several additional plaintiffs will soon join the suit. These new complainants' claims will center on the additional federal income taxes they have been required to pay because, unlike opposite-sex married couples, they are not allowed to file their tax returns jointly. (GLAD also represented the successful Massachusetts plaintiff in Gill.)

Each of the plaintiffs' states authorizes same-sex marriage under its own laws ' Connecticut since 2008, Vermont since 2009 and New Hampshire since 2010. “Throughout history and at least until 1996, the United States has consistently deferred to the states when the marital status of an individual has been used as a marker of eligibility or access to some benefit, right, or responsibility identified by the federal government,” states the complaint. It further states that, in response to the looming possibility that the State of Hawaii might sanction same-sex marriage, Congress “took the unprecedented step of preemptively nullifying a class of marriage that it expected states would begin to license at some point in the future, that is, marriages of same-sex couples. It withdrew from these marriages, but not from others, all federal financial and other responsibilities and protections.”

The complaint notes that four reasons were given for the enactment of DOMA, which can be found in the official House Report on DOMA, 1 U.S.C. '7, H.R. Rep. No. 104-664. They are: “1) H.R. 3396 [the bill's number] advances the government's interest in defending and nurturing the institution of traditional heterosexual marriage. 2) H.R. 3396 advances the government's interest in defending traditional notions of morality. 3) H.R. 3396 advances the government's interest in protecting state sovereignty and democratic self governance. 4) H.R. 3396 advances the government's interest in preserving scarce government resources.” The complaint goes on to knock the first two stated reasons as simple restatements of the federal government's determination to discriminate against and show moral disapproval of same-sex couples; not “reasons” at all, say the plaintiffs. The third reason ' to protect state sovereignty ' is, as the complaint points out, obviously a reason why DOMA should not be honored, as the federal legislation interferes with states' traditional prerogative to determine which people are eligible to marry.

The fourth stated reason for denying federal marriage rights to same-sex couples seems to offer the most legitimate rationale for the enactment of DOMA. Although the plaintiffs state in their complaint that a 2004 Congressional Budget Office report found that recognition of same-sex marriages would actually increase federal revenue through 2014, certainly an argument can be made to the contrary. The plaintiff seeking Social Security survivor benefits is one example of the extra expense taxpayers would incur if same-sex marriages were treated by the federal government in the same way as opposite-sex marriages. Similarly, if the Windsor plaintiff, who is seeking the return of the more than $350,000 she paid in inheritance tax, prevails, the federal coffers will lose the $350,000+ taxes she had to pay upon inheriting from her spouse. But, in the opinion of the plaintiffs, “While the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families.”

Both Sides Fight On

The Obama administration has already stated its opposition to DOMA and its belief that the law should be repealed. However, in an Oct. 30, 2009 filing in the Commonwealth of Massachusetts case, the DOJ vowed, in accordance with longstanding practice, to defend the statute as long as reasonable arguments could be made for its constitutionality. 2009 WL 3794375 (Trial Motion, Memorandum and Affidavit) (D.Mass. Oct. 30, 2009) Memorandum of Points and Authorities on Support of Defendants' Motion to Dismiss (NO. 109-11156-JLT). To that end, on Oct. 12, 2010, the U.S. Department of Justice (DOJ) filed notices of appeal in the two Massachusetts cases, Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

Proponents of DOMA are adamant that the law should be properly defended, a responsibility many feel the DOJ abdicated in the two Massachusetts cases. One in this camp, Rep. Lamar Smith (R-TX), was so unhappy with the DOJ's performance in Massachusetts that on Oct. 5, 2010, he took the unusual step of requesting to intervene as the lead defender in those cases' appeals. In his motion, Smith asserts that the Justice Department abandoned the arguments that had previously been successful against challenges to DOMA because, after Barack Obama became president, the new administration and the plaintiffs all sought the same goal ' to abolish DOMA.

With the newly filed cases in New York and Connecticut, citizens of four more states have upped the ante, putting more pressure on the federal government to defend DOMA or let it fail when the issue inevitably makes its way to the U.S. Supreme Court.

To opponents of the law, the outcome could not be more important. “DOMA must fall,” said Mary L. Bonauto, Civil Rights Project Director for GLAD, in a statement announcing the filing of the Pedersen suit. “Married gay and lesbian couples fall through the federal safety nets that exist for other married people. We have to keep the pressure on and get DOMA off the books before it does even more harm.”

Janice G. Inman is Editor-in-Chief of this newsletter.

Two recently filed suits, one in Connecticut and one in New York, claim that the United States, by relying on the Defense of Marriage Act, codified at 1 U.S.C. ' 7 (DOMA), to deny the validity of same-sex marriages, violated the constitutional rights of the plaintiff gay and lesbian married couples. These New York, Connecticut, Vermont and New Hampshire plaintiffs are putting the 1996 law on the defensive once again, following the successful challenge of DOMA in two cases heard last year by the U.S. District Court for the District of Massachusetts ' Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services , 698 F.Supp.2d 234 (D.Mass. 7/8/10) and Gill v. Office of Personnel Management , 699 F.Supp.2d 374 (D.Mass., 7/8/10).

A Lifetime of Commitment, a Two-Year Marriage

The plaintiff in the New York case, Windsor v. U.S., 10 cv 8435, is Edith Schlain Windsor. She is the widow of Thea Spyer. The two had a 44-year relationship, which Windsor characterizes in her complaint as a 40-plus-year engagement followed by two years of marriage. The marriage was delayed by the fact that marriage for same-sex couples was prohibited for most of the term of their relationship, but they were finally able to legally marry in Canada in 2007.

The State of New York now recognizes the marriages of same-sex couples legally performed in other jurisdictions, though such unions still may not be legally entered into within the State. Because of DOMA, the United States does not. (DOMA's ' 3 prohibits the federal government from recognizing the marriages of same-sex couples who are considered legally married in their own states and restricts the federal government's ability to grant those couples the federal benefits other married couples enjoy.) This discrepancy left Windsor, the beneficiary of Spyer's estate, with a costly problem: She was forced to pay federal estate taxes in excess of $350,000. “In other words,” states the complaint, “Edie's inheritance, unlike the inheritance of a widow who had been left everything by her deceased husband, has been significantly reduced by the estate tax. Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four year committed relationship.” The plaintiff seeks to recover the taxes she says were illegally collected from her in violation of the U.S. Constitution. She is being represented by attorneys with the American Civil Liberties Union.

Plaintiffs in Three More States Cry Foul

Pedersen v. Office of Personnel Management, 10 cv 01750, currently encompasses the complaints of four same-sex married couples, residing in Connecticut, New Hampshire and Vermont.

One plaintiff claims she was unlawfully denied family leave to care for her injured wife. Another is a widower who was denied survivor benefits and Social Security death benefits. Some plaintiffs claim their spouses should have received benefits under federal health care coverage programs but were unlawfully denied that right. The plaintiffs are represented by the Gay and Lesbian Advocates and Defenders (GLAD), which says that several additional plaintiffs will soon join the suit. These new complainants' claims will center on the additional federal income taxes they have been required to pay because, unlike opposite-sex married couples, they are not allowed to file their tax returns jointly. (GLAD also represented the successful Massachusetts plaintiff in Gill.)

Each of the plaintiffs' states authorizes same-sex marriage under its own laws ' Connecticut since 2008, Vermont since 2009 and New Hampshire since 2010. “Throughout history and at least until 1996, the United States has consistently deferred to the states when the marital status of an individual has been used as a marker of eligibility or access to some benefit, right, or responsibility identified by the federal government,” states the complaint. It further states that, in response to the looming possibility that the State of Hawaii might sanction same-sex marriage, Congress “took the unprecedented step of preemptively nullifying a class of marriage that it expected states would begin to license at some point in the future, that is, marriages of same-sex couples. It withdrew from these marriages, but not from others, all federal financial and other responsibilities and protections.”

The complaint notes that four reasons were given for the enactment of DOMA, which can be found in the official House Report on DOMA, 1 U.S.C. '7, H.R. Rep. No. 104-664. They are: “1) H.R. 3396 [the bill's number] advances the government's interest in defending and nurturing the institution of traditional heterosexual marriage. 2) H.R. 3396 advances the government's interest in defending traditional notions of morality. 3) H.R. 3396 advances the government's interest in protecting state sovereignty and democratic self governance. 4) H.R. 3396 advances the government's interest in preserving scarce government resources.” The complaint goes on to knock the first two stated reasons as simple restatements of the federal government's determination to discriminate against and show moral disapproval of same-sex couples; not “reasons” at all, say the plaintiffs. The third reason ' to protect state sovereignty ' is, as the complaint points out, obviously a reason why DOMA should not be honored, as the federal legislation interferes with states' traditional prerogative to determine which people are eligible to marry.

The fourth stated reason for denying federal marriage rights to same-sex couples seems to offer the most legitimate rationale for the enactment of DOMA. Although the plaintiffs state in their complaint that a 2004 Congressional Budget Office report found that recognition of same-sex marriages would actually increase federal revenue through 2014, certainly an argument can be made to the contrary. The plaintiff seeking Social Security survivor benefits is one example of the extra expense taxpayers would incur if same-sex marriages were treated by the federal government in the same way as opposite-sex marriages. Similarly, if the Windsor plaintiff, who is seeking the return of the more than $350,000 she paid in inheritance tax, prevails, the federal coffers will lose the $350,000+ taxes she had to pay upon inheriting from her spouse. But, in the opinion of the plaintiffs, “While the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families.”

Both Sides Fight On

The Obama administration has already stated its opposition to DOMA and its belief that the law should be repealed. However, in an Oct. 30, 2009 filing in the Commonwealth of Massachusetts case, the DOJ vowed, in accordance with longstanding practice, to defend the statute as long as reasonable arguments could be made for its constitutionality. 2009 WL 3794375 (Trial Motion, Memorandum and Affidavit) (D.Mass. Oct. 30, 2009) Memorandum of Points and Authorities on Support of Defendants' Motion to Dismiss (NO. 109-11156-JLT). To that end, on Oct. 12, 2010, the U.S. Department of Justice (DOJ) filed notices of appeal in the two Massachusetts cases, Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

Proponents of DOMA are adamant that the law should be properly defended, a responsibility many feel the DOJ abdicated in the two Massachusetts cases. One in this camp, Rep. Lamar Smith (R-TX), was so unhappy with the DOJ's performance in Massachusetts that on Oct. 5, 2010, he took the unusual step of requesting to intervene as the lead defender in those cases' appeals. In his motion, Smith asserts that the Justice Department abandoned the arguments that had previously been successful against challenges to DOMA because, after Barack Obama became president, the new administration and the plaintiffs all sought the same goal ' to abolish DOMA.

With the newly filed cases in New York and Connecticut, citizens of four more states have upped the ante, putting more pressure on the federal government to defend DOMA or let it fail when the issue inevitably makes its way to the U.S. Supreme Court.

To opponents of the law, the outcome could not be more important. “DOMA must fall,” said Mary L. Bonauto, Civil Rights Project Director for GLAD, in a statement announcing the filing of the Pedersen suit. “Married gay and lesbian couples fall through the federal safety nets that exist for other married people. We have to keep the pressure on and get DOMA off the books before it does even more harm.”

Janice G. Inman is Editor-in-Chief of this newsletter.