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FEATURE: Horse race to equality—Federal marriage lawsuits
News update Wed., July 15, 2009
by Lisa Keen, Keen News Service

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This article is the first in a two-part series looks at the suddenly crowded field of federal lawsuits seeking to make history by being the first to secure equal marriage rights in the United States.

A year ago, there were none, now there are five lawsuits in federal court seeking to establish equal rights for gay couples in marriage licensing.

But these are not five equally matched horses heading for the same finish line. Two of them challenge one aspect of the federal Defense of Marriage Act ( DOMA ) , while the other three seek to strike own statewide bans on gay marriage as being in violation of the U.S. Constitution.

An enormously successful gay litigation group is waging one lawsuit on behalf of multiple plaintiffs; a recent law school graduate has mounted another lawsuit behalf of himself and his 18-year-old spouse-to-be.

The most recent entry is a lawsuit filed by the Commonwealth of Massachusetts on July 8—the first state-driven lawsuit to enter the field. Massachusetts was also the first state to enable same-sex couples to obtain marriage licenses the same as heterosexual couples.

Massachusetts Attorney General Martha Coakley said many of the state's married residents and their families "are being hurt by a discriminatory, unprecedented, and—we believe- unconstitutional federal law."

Challenging DOMA Section 3

The state's lawsuit challenges that law—the Defense of Marriage Act ( DOMA ) , passed in 1996. DOMA provides that no state can be "required" to recognize the marriage of a same-sex couple licensed in another state and limits the interpretation of "marriage" for any federal purpose to only heterosexual couples. The Massachusetts lawsuit, Massachusetts v. U.S., challenges only the latter part, also known as Section 3.

At a press conference announcing the lawsuit, Coakley said DOMA prevents the state from treating all married couples equally. She said the law violates the 10th Amendment to the U.S. Constitution that says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." She says the law also violates a U.S. Constitutional provision that the federal government's policies regarding taxing and spending be uniform throughout the nation. Because of DOMA, said Coakley, Massachusetts is forced to withhold more taxes from gay employees who cover their spouses under their work-provided health insurance.

"For over 200 years, the federal government recognized that the authority to create and regulate marital status was a power that belonged exclusively to the states and was an essential aspect of each state's sovereignty," said Coakley at the press conference. "However, as a result of [ DOMA ] , the federal government invades that sovereignty, we believe, and is a violation of the Constitution."

The lawsuit was filed with the federal district court in Boston, the same court where the first and only gay community-driven lawsuit was filed in March. Gay & Lesbian Advocates & Defenders, the group that won equal marriage rights in the courts of Massachusetts in 2004 and Connecticut in 2008, filed its challenge of DOMA Section 3 in March. GLAD's lawsuit, Gill v. Office of Personnel Management, says DOMA's Section 3 violates the constitution's 5th Amendment guarantee of equal protection of the law, by treating same-sex couples with marriage licenses differently than heterosexual couples with marriage licenses.

GLAD's lawsuit represents eight married couples and three gay individuals whose spouses have died. It has already scored one victory. In June, the U.S. Department of Justice announced that the Department of State was immediately amending provisions that prevented the issuance of new passports to gay spouses who changed their names after legally marrying.

Attorney General Coakley said that more than 16,000 same-sex couples have obtained marriage licenses in Massachusetts since May 2004, when the state began allowing gay couples to obtain marriage licenses the same as heterosexual couples.

Challenging statewide bans

At least three other lawsuits have been filed in federal court in the past six months but these are distinctly different. They challenge statewide bans of same-sex marriage, arguing that they are in violation of the U.S. Constitution.

The highest profile and most sophisticated of these three is Perry v. Schwarzenegger, filed by the newly created American Foundation for Equal Rights. The lawsuit was filed in federal district court in San Francisco in May on behalf of a lesbian couple and a gay male couple. It drew immediate and considerable media attention because its lead attorneys are the prominent conservative attorney Theodore Olsen and liberal lawyer David Boies. Olson and Boies were opponents in the historic 2000 U.S. Supreme Court case Bush v. Gore, which declared that George W. Bush would become president.

The Perry lawsuit was prompted by Proposition 8, which amended the California constitution to ban same-sex marriage, but says the subsequent inability of gay couples to marry there is a violation of their equal protection rights under the U.S. Constitution. A judge has promised a speedy trial on the matter and requested preliminary briefs be filed by Aug. 7.

Another case in California, Smelt v. U.S., was filed in December after voters approved Prop 8, but was initiated in 2004 by a gay male couple, Arthur Smelt and Christopher Hammer, represented by a private attorney. Their legal challenge has been criticized all along the way gay legal activists and legal scholars as flawed and weak on several procedural grounds. But the lawsuit was also the subject of enormous media and community attention recently when it elicited a controversial brief from the Obama Justice Department. Even though President Obama has repeatedly stated he believes DOMA should be repealed, his Justice Department defended the law far beyond procedural matters. It argues that DOMA addresses a legitimate governmental need to remain "neutral" about same-sex marriage and to protect "scarce resources" by declining "to obligate federal taxpayers in [ straight marriage only ] States to subsidize a form of marriage their own States do not recognize." It also claims, "DOMA does not discriminate against homosexuals in the provision of federal benefits," a contention that seems boldly indefensible in light of the text of the law.

The remaining lawsuit, Bonilla v. Levine, is the least known and the least likely to succeed. It, like Smelt, was filed by an individual gay male couple, Kristoffer Bonilla and John Wray, without the aid or blessing of any gay litigation group. Bonilla, a recent law school graduate, is representing the couple in a federal court in New Orleans.

Meanwhile, back at the ballot box, a coalition in Maine called "Stand for Marriage Maine" told a local religious news organization July 8 that it has gathered about 70,000 signatures to support its bid to put gay marriage on the ballot in November. The group needs to submit 55,087 signatures to the Maine Secretary of State by the end of the summer. The Secretary of State must then verify the signatures before the referendum is officially on. If it is validated, the state will not begin issuing marriage licenses to same-sex couples in September, as the newly approved law provides for. The Portland Press Herald reported last month that Stand for Marriage Maine has hired the same public affairs group that ran the pro-Prop 8 campaign in California.

Part Two: Entering a lawsuit in federal court is a lot easier than entering a racehorse at the Kentucky Derby—almost anything with the metaphorical equivalent of four legs can do it. But a carefully prepared lawsuit has a much better chance of success and a lame lawsuit, like a lame horse, can do damage beyond itself.

©2009 Keen News Service

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