DOMA suit draws praise, criticism

by Joe Siegel

EDGE Media Network Contributor

Thursday March 12, 2009

As lawmakers in Rhode Island, Vermont and other states continue to debate marriage and other forms of relationship recognition for same-sex couples, activists within the movement remain optimistic a lawsuit filed last week in Boston to challenge a portion of the Defense of Marriage Act could enhance their efforts down the road.

The Boston-based Gay & Lesbian Advocates and Defenders filed the suit on March 3 on behalf of eight same-sex couples who married in Massachusetts and three people who survived their same-sex couples. The complaint challenges the provision of DOMA, which former President Bill Clinton signed into law in 1996, that prohibits the federal government from recognizing same-sex marriages. And as a result, gay and lesbian couples cannot receive the benefits to which their married heterosexual counterparts are entitled.

More than 10,000 same-sex couples have been married in Massachusetts since the Commonwealth became the first state to allow marriage for gays and lesbians in 2004. The Bay State treats all married couples equal under the law, but DOMA specifically defines marriage as "only a legal union between one man and one woman." It also refers to a spouse as "a person of the opposite sex who is a husband or a wife."

The consequences of these definitions are far-reaching. A same-sex couple whose marriage is valid in Massachusetts cannot receive spousal benefits under Social Security. If one spouse is not an American citizen, he or she cannot sponsor the other for citizenship. And the same-sex spouse of a federal employee cannot receive family health insurance, retirement or death benefits.

Human Rights Campaign spokesperson Trevor Thomas asserted the DOMA suit is about granting equal benefits under the law to all Americans--whether they are gay or straight--as opposed to the right to marry.

"DOMA unconstitutionally excludes legally-married lesbian and gay couples from the protections that their neighbors and friends take for granted," he said.

Thomas added he believes GLAD's lawsuit will make people more aware of the discrimination he maintains same-sex couples continue to suffer.

"As this suit goes forward, more and more Americans are going to understand that lesbian and gay couples are being denied the Social Security benefits for which they pay taxes their whole lives, and have a host of everyday problems ranging from name-change issues for passports to calculating two separate tax returns," Thomas noted. "When people understand this, support for equality will grow."

Jenny Pizer, a lawyer affiliated with Lambda Legal, added she feels lawyers spent years preparing their DOMA challenge.

"This case is opening the next chapter of critically important national conversation."

"They're representing couples who have been married for years and who have very well-documented, specific harms," she said. "That's the very important preparatory work that's been done."

She acknowledges the suit could face an uphill battle with what she terms an "exceedingly conservative" Supreme Court. Pizer noted, however, she feels it will take many years for the case to work its way through the courts.

"This case is opening the next chapter of critically important national conversation," she said. "There are thousands of married couples living in states that respect their marriages and thousands living in states that do not."

Anti-gay and other conservative organizations remain poised to vigorously defend DOMA--and to assert the need for a federal Constitutional amendment that defines marriage as a union between a man and a woman..

"The federal Defense of Marriage Act preserves state sovereignty and prevents one state from rewriting the definition of marriage for every other state," Liberty Counsel founder and chair Mathew Staver said in a statement. "DOMA was passed overwhelmingly by a bipartisan Congress and signed into law by President Bill Clinton. It is an extreme position to advocate the repeal of DOMA."

Staver has defended DOMA and its definition of marriage in nearly 50 state and federal courts. He and his wife Anita also authored the so-called Florida Marriage Protection Amendment for which more than 62 percent of Sunshine State voters supported last November.

Family Research Council President Tony Perkins echoed Staver as he further criticized GLAD, the couples named in the lawsuit and even President Barack Obama.

"DOMA is necessary, as is a Federal Marriage Amendment, to ensure a solid future for traditional marriage in this country and the well-being of our children," Perkins said.

Pizer remains optimistic in spite of this criticism. She said she is hopeful the White House will take steps to guarantee the same-sex partners of federal employees receive the same rights and benefits as their heterosexual counterparts. And Pizer added she feels education and continued outreach remain equally as important as litigation.

"Our community has a lot of responsibility for continuing the education and community-building and social change work that is in the hands of movement activists but all of us. We have a lot of work to do in a lot of states," Pizer said.

Joe Siegel has written for a number of other GLBT publications, including In newsweekly and Options.