Tuesday, March 03, 2009

Suit Attacks DOMA

Last year I commented on Glenn Greenwald's proposal that Congressional Democrats should move to repeal Section 3 of the Defense of Marriage Act, which bars couples in same-sex marriages from receiving the same benefits from the federal government that opposite-sex couples do. Today same-sex couples in Massachusetts, where gay marriage is legal, will file suit in the hopes that the federal courts will do what Congressional Democrats so far have not:

The suit, to be filed in Federal District Court in Boston, does not challenge a separate provision of the act that says states do not have to recognize same-sex marriages performed in other states. Information about the suit is posted on the advocacy group's web site.

While the Government Accountability Office has identified more than 1,100 federal statutory provisions in which marital status is a factor in rights and benefits, the suit focuses narrowly on equal protection as applied to Social Security, federal income tax, federal employees and retirees, and the issuance of passports.

“We picked programs every American can relate to,” Ms. Bonauto said.

The plaintiffs in the suit include eight couples and three widowers, all of whom were married in Massachusetts after the state began allowing same-sex marriages in 2004. All have applied for federal benefits, Ms. Bonauto said, but have been denied because the federal government does not recognize their marriages.

Some of the plaintiffs are federal employees who cannot share their health benefits with spouses; others cannot file taxes jointly or are receiving less generous Social Security retirement benefits.

The widowers include Dean Hara, the spouse of former Representative Gerry E. Studds. After Mr. Studds died in 2006, Mr. Hara, 51, was denied his Congressional pension and other benefits normally extended to surviving spouses of federal employees.

Another married couple, Melba Abreu and Beatrice Hernandez, estimate they would have saved about $20,000 in federal income tax over the past few years if they had been able to file jointly.

“In our case, the core of our American dream has always been for Melba and I to provide for one another,” said Ms. Hernandez, 47, of Boston. “This presents a real threat to that, when we take a good hard look at our future years.”

These couples are callously and arbitrarily denied benefits that same-sex couples are entitled to, but this suit has a chance of ending this form of legalized discrimination:

Erwin Chemerinsky, a constitutional law scholar and dean of the law school at the University of California, Irvine, said that the case seemed strong but that victory was not certain.

“I think that under established equal protection law, they have strong claims,” Mr. Chemerinsky said. “But it does raise issues that courts haven’t dealt with before, so that makes it more difficult to predict what the courts will do.”

This news doesn't mean that we shouldn't continue to press Congressional Democrats on this issue. Lawsuits are slow and uncertain, and it could be years before this suit is resolved even if it meets with some success at the district or appellate level. Congress can be slow as well, but Congress can put an end to this discrimination with one bill, in one day.

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