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Diversity Leadership CouncilThe newsletter of the ISBA’s Diversity Leadership Council

June 2009, vol. 3, no. 1

A new path to equality: The Challenge to Section 3 of DOMA in Gill, et al. v. OPM, et al.

On March 3, 2009, the Gay and Lesbian Advocates and Defenders (GLAD) commenced a challenge to Section 3 of the federal Defense of Marriage Act (DOMA), 1 U.S.C. § 7, in the United States District Court for the District of Massachusetts. See Gill, et al. v. OPM, et al., No. 2009cv10309. Along with several Boston law firms, Jenner & Block is privileged to act as cooperating counsel in this litigation.

After recent historic developments in Vermont and Iowa, the number of states choosing to provide marriage equality to all of their citizens has risen to four, with more likely to follow in the com- ing years and a number of other states choosing to provide full-faith-and-credit to same-sex marriages performed elsewhere. Yet each new victory at the state level, while cause for celebration, is also a reminder that although the states are the traditional arbiters of marital and familial status, state governments today have no authority with respect to many important federal rights and responsibilities that are linked to marital status. These federal rights and responsibilities have an enormous impact of the daily lives of families and individuals that is at least equal to that of the rights and responsibilities conferred under state law. They include well-known entitlements like the right to file a joint federal income tax return, to deduct employer-paid spousal health benefits, to collect social security death benefits, to receive health and pension benefits if one’s spouse is a federal employee, to take unpaid leave from one’s job to care for a sick spouse, to sponsor one’s non-citizen spouse for a visa and citizenship, to refuse to testify against one’s spouse in federal court, and over one thousand others, according to the Federal Government’s own statistics. Moreover, unlike some (though not all) state rights and obligations connected to marriage like communal property and inheritance, most federal marriage- related rights and obligations are not replicable through contract.

All marriage-related federal rights and obligations are currently denied to same-sex couples regardless of whether their marriages are recognized as lawful in their states of residence pursuant to Section 3 of DOMA. For 200 years, the Federal Government largely deferred to the states on the proper definition ofmarriage for the purpose of implement- ing federal programs, even on morally-charged issues related to the definition of marriage where the states disagreed, such as age restrictions, consanguinity and common law marriage. In 1996, however, this centuries-long practice of deference to the states ended, with the enactment of Section 3. Section 3, enacted like Section 2 in response to the possibility that the state of Hawaii would legalize same-sex marriage, prohibits the Federal Government from defining the words “marriage” or “spouse” to connote anything other than “the union of one man and one woman” for any purpose, regardless of any state’s definition of marriage. Unlike the more well-known Section 2, Section 3 does not speak to the obligations of the states themselves with respect to same-sex marriages law- fully entered into in other states. Rather, Section 3 singles out a specific subset of lawfully married couples for sweeping disability under federal law, based solely on the fact that they are of the same gender.

The plaintiffs in the lawsuit filed by GLAD all are or were legally married in Massachusetts. Many have raised or are raising children. They include a former congressman’s widower who was denied his husband’s congressional pension and a retired employee of the Social Security Administration who is worried about this same thing for his husband; a postal worker who cannot add her wife to her family health insurance plan; three other widowers who were denied social security death and survivor benefits; a business owner married to an Air Force veteran who was denied the right to change his name to that of his husband and step-daughter on his passport; and several couples, old and young, middle and working class, who have paid thousands more in taxes to the Federal Government than they otherwise would have had their marriages been federally recognized.

The Gill plaintiffs’ challenge to Section 3 is, fundamentally, quite simple: by tak- ing lawfully married couples and dividing them into two groups-—those who are respected and those who are effectively “unmarried” by operation of DOMA- Section 3, as applied to the plaintiffs, clearly violates the Federal Government’s promise of equal protection in the Fifth Amendment to the Constitution. It is also an unprecedented negation of state power to license marriage and state authority in family-related legal mat- ters generally, one that is not rationally related to any of the purposes that have traditionally motivated federal interfer- ence in areas of primary state concern. Moreover, the Federal Government has never articulated any other legitimate policy justification for such sweeping, wholesale interference with the state- created right to marriage at issue in this case; nor can this enormous burden placed on certain families be rationally justified based on implementation-related concerns that are specific to particular federal programs. Rather, the burden that Section 3 places on certain families can only reasonably be explained as the result of animus against LGBT people, animus which the legislative history of DOMA, replete as it is with denunciations of homosexuality and gay and lesbian relationships, amply confirms. Such animus continues to trump not only the legitimate needs of the plaintiffs and their families but also the basic structure of our system of federalism.

We believe strongly that the commencement of the Gill case represents a promising new development in the push for marriage equality, one rooted firmly in traditional notions of equal protection and the division of authority between federal and state governments. Ultimately, the case is a complement to, rather than a substitute for, the continu- ing push to win hearts and minds at the state level. The Gill plaintiffs do not seek recognition of any new federal right to same-sex marriage. Rather, as Attorney-General Coakley of Massachusetts put it on the day the case was filed, “[t]hey are simply seeking the legal protections given to all other married couples.” We are very hopeful that this goal will be achieved.

For more information about this litigation or the other important work being done by GLAD, please visit <www.glad.org>.


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