New Suits Filed Against DOMA
0A federal court found in July that an anti-gay federal law from 1996, the so-called "Defense of Marriage" Act, which denies federal recognition to same-sex families, is unconstitutional. But that decision was limited in scope.
Two new lawsuits involving plaintiffs from four states target DOMA in a much broader and more comprehensive manner, reported the New York Times on Nov. 8.
The suits have been filed by two organizations, Gay and Lesbian Advocates and Defenders (GLAD), and the American Civil Liberties Union. The ACLU's suit is set to go after punitive estate tax provisions that inflict a financial burden on the surviving member of a same-sex union--a burden with which a surviving heterosexual spouse would not be saddled.
The plaintiff in the ACLU suit, Edith Windsor, filed suit on Nov. 9. Windsor and her wife, Thea Spyer, were married in Canada in 2007, after having been a longtime committed couple since 1965. Though the possibility to marry remained four decades in the future at that time, the couple got engaged two years after their relationship began. Though Windsor and Spyer lived in New York, which does not grant marriages to same-sex families, the state did recognize their marriage as having been granted in another jurisdiction.
When Thea died after a three-decade long struggle with multiple sclerosis, the 81-year-old Edie was hit with a staggering tax bill. "This case points out that it is a denial of the equal protection principles of the Fifth Amendment to the United States Constitution for the federal government to pick and choose which marriages it will recognize for federal purposes, when it otherwise leaves that question entirely up to the states," text at the ACLU website reads.
The other suit targets DOMA because the federal law makes it impossible for people who are legally married at the state level to add their spouses to their federally provided health care plans, as well as denying married couples of the same gender a host of other rights, protections, and benefits available on the federal level for heterosexual married couples.
The director of the Civil Rights Project for the Gay and Lesbian Advocates and Defenders, lawyer Mary Bonauto, pointed out the inconsistency in how the federal government approaches marriage: states are allowed to regulate marriage, and the federal government honors the marriages that states permit--except in the case of gay and lesbian families.
The case from last summer was appealed by the Justice Department. President Barack Obama has said ever since he was a candidate on the campaign trail in 2008 that he believes gay and lesbian families should be granted civil unions, but that marriage should remain a special right reserved exclusively for heterosexual couples. That position contradicts statements he made before his presidential run, when he answered a 1996 questionnaire by indicating that he would support full marriage equality for same-sex couples. When Obama told a group of bloggers last month that his views on marriage were "evolving," pundits quipped that, if so, those views are "evolving" to their earlier, pre-2008 state.
An Oct. 28 New York Magazine article by Dan Amira openly dismissed as "disingenuous" the distinction Obama makes when he says he upholds civil unions but not marriage equality. Titled, "President Obama Getting Closer to Ending His Pretend Opposition to Gay Marriage," the article noted that Obama had opposed Proposition 8, the 2008 ballot initiative that rescinded marriage rights for gay and lesbian families in California. The article also tallied the president's record of support for GLBT equality, and recalled that in 1996 Obama answered a questionnaire that asked about marriage equality by saying that he would be in favor of it.
"When you add it all up, the only conclusion that really makes sense is that, in his heart, Obama is fine with gay marriage, but didn't think the nation was ready for a president who felt that way," Amira wrote. The article then went on to say, "Approval of gay marriage surged, it was legalized in a number of states, and Obama's support for civil unions, which would have been considered relatively enlightened five or ten years ago, began to seem downright antiquated to many people."
Amira speculated that the comment might herald an open declaration of support for marriage equality in 2012. Given the social shift, a pro-marriage stance from Obama would "be inherently mainstream."
An Oct. 27 Politico article by Josh Gerstein echoed those speculations, citing Richard Socarides, who said, "Presidents don't usually think out loud unless they intend to send a signal that they are shifting a position." Socarides, who had served as an advisor to Bill Clinton, went on to add, "I think [Obama] realizes he can't run as a gay rights advocate in 2012 and be against marriage equality. People see domestic partnerships are separate but equal."
If the two new suits result in rulings against DOMA, the Justice Department is expected to appeal the verdicts, just as it has with the July ruling.
Setbacks and Hope for Full Family Parity
The New York Times noted that although acceptance of gay and lesbian families continues to climb in American society, voters in Iowa last week signaled their displeasure at that state's having become the first heartland state to extend marriage equality to all families. Marriage equality became the law in Iowa when the state's supreme court unanimously struck down an anti-gay law in 2009. The court determined that the law conflicted with guarantees of equality in the Iowa constitution; state lawmakers then refused to allow a proposed amendment to the constitution to go before voters. The voters, in turn, punished the supreme court's justices who were up for retention votes, ousting all three of them--although two judges in lower courts who had ruled in favor of same-sex families retained their posts.
The campaign to oust the judges drew large sums of money from out of state, including funds from the National Organization for Marriage (NOM), a Mormon Church-linked organization that has mounted anti-gay campaigns across the nation, including in California during the 2008 Proposition 8 campaign to rescind marriage rights for same-sex families.
NOM head Maggie Gallagher told the New York Times that the suits were a sign that GLBT equality advocates "continue to push a primarily court-based strategy of, in our view, inventing rights that neither the founders nor the majority of Americans can recognize in our Constitution."
But for gay and lesbian families, the courts are a logical and necessary recourse when the legislative branch--and the ballot box--refuse to protect their rights, or actively seek to erode them. Aside from a question of equal treatment before the law, there is also the question of fiscal inequality, with same-sex families shouldering expenses that their mixed-gender peers are not forced to carry. A New York Times study published Oct. 2, 2009, showed that gay and lesbian families shell out as much as $200,000 over and above what straight couples pay over the course of a life spent together.
Bonauto and GLAD have already made history when it comes to marriage rights. Bonauto has been with GLAD, a Boston-based equality organization, for 20 years. In 1997, Bonauto sued the state of Vermont for marriage equality rights for three couples; the Vermont Supreme Court ruled in favor of the couples, before referring the matter to the state's legislature, which created civil unions.
In 2001, GLAD brought suit in Massachusetts on behalf of seven couples seeking marriage equality. That suit also found its way to the state supreme court, where, once more, the justices ruled in favor of the same-sex families. The result was that, in 2004, Massachusetts became the first state where same-gender families could access civil marriage rights. Since then, six other states have also granted marriage equality--although in two states, California and Maine, those rights were rescinded when put up to popular vote. The District of Columbia also allows marriage equality.
Though the ouster of the three Iowa justices has alarmed GLBT equality advocates and judicial watchdogs alike, the picture for marriage equality in two other states, New York and Maryland, brightened considerably with the election in New York of Andrew Cuomo to the governor's office and the re-election of Maryland Gov. Martin O'Malley.