Six married same-sex couples and three surviving spouses in Massachusetts are filing a federal lawsuit today challenging the application of DoMA to federal employee benefits, taxes, Social Security benefits and passport rules. In a 92-page complaint, the lead lawyers at GLAD have spelled out in great detail how each plaintiff has suffered material harm from losing a benefit or status to which they would be entitled had their spouse not been a same-sex partner. (Summary also available)
UPDATE: The case was assigned to Judge Joseph Tauro.
The case asserts just one legal theory: that each plaintiff suffered a violation of the Equal Protection Clause. For most of the examples, plaintiffs assert that DoMA "creates a classification that treats similarly situated individuals differently without justification." For some, that assertion is qualified that DoMA "as applied by" the particular agency amounts to a violation of the Equal Protection Clause. For the employee benefits claims, plaintiffs assert that DoMA does not require a denial of benefits, but that the defendant Office of Personnel Management (OPM) has adopted "an improper and overly narrow construction of the permissible bounds of OPM's authority to extend coverage to family members." This is no doubt a nod to the statutory construction argument used by Chief Judge Kozinski in the Ninth Circuit to support his decision ordering that health benefits be extended to the same-sex spouse of a court employee.
The new case - Gill v. Office of Personnel Management - does not challenge the prerogative of states to refuse to recognize same-sex marriage. It is targeted at the discriminatory effects of Section 3 of DoMA, which directs the federal government to recognize only heterosexual marriages as valid for purposes of federal laws and programs. The lawsuit essentially seeks to restore the pre-DoMA federal policy of relying on each state's law for determining the validity of the marriages of its residents. The plaintiffs are arguing that the federal government should treat them as married because they are lawfully married under Massachusetts law.
Gill v. OPM is also not a facial challenge, but an as applied challenge, meaning that it does not assert that Section 3 of DoMA is always in every situation unconstitutional, but only that it is unconstitutional as applied to these plaintiffs, regarding the specific benefits in question. Framing the case in this way will force the court to focus in on these carefully selected facts and parties. Although that framing technically means that any relief they obtain will also be limited to the named plaintiffs, the practical effect of winning would be to change the rules for the programs that are under challenge.
The big question, of course, is whether they will win. The answer to that is likely to turn on two things and on the interaction between them.
- The first is how the federal courts - potentially up to and including the Supreme Court - will interpret the 1995 decision in Romer v. Evans, which struck down a Colorado state constitutional amendment that established a separate and more difficult process for enacting laws prohibiting sexual orientation discrimination. The Supreme Court found that Colorado had no legitimate reason for adopting the provision, because singling out a group of citizens for unequal treatment across many areas denied them the equal protection of the law. The plaintiffs here argue that DoMA similarly has no purpose except to instantiate second-class citizenship.
- The second dynamic will be happening across the street from the Supreme Court. This lawsuit will not surprise supportive members of Congress, who have been briefed on it. Nothing will happen immediately. But if the plaintiffs win a positive decision in the lower courts, that may contribute to a move to repeal at least this section of DoMA.
The second piece will depend on whether Democrats hold onto large majorities in the 2010 and perhaps 2012 congressional races. As things now stand, the first piece will depend on this guy named Kennedy.
Do you think that there are other theories that could be used to challenge the applicability or validity of DOMA other than equal protection?
Posted by: Paula Canny | November 07, 2009 at 10:00 PM