National Call In: The Future of Same-Sex Marriage
The National LGBT Bar Association held a conference call today to discuss the many court and legislative battles the gay and lesbian community has won recently, and also to look at the future of the same-sex marriage movement. Executive Director D'Arcy Kemnitz (pictured left) moderated the call and was joined by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD).
Among the topics discussed were California's Proposition 8, the recent victories in Vermont, Maine, and Iowa, Washington D.C., the status of efforts in New Hampshire and New York, and GLAD's current federal court Defense of Marriage Act (DOMA) challenge.
UPDATE: A copy of the recording is now available at the National LGBT Bar Association website. You may scroll to the bottom of this post for a link to the approximately 1-hour long audio, or read some highlights of the issues that were discussed: Read More
Have a question, comment, or response? Share your thoughts.DOMA Challenge in Federal Tax Court
Charles Merrill, millionaire and cousin of the co-founder of Merrill Lynch, joined by Kevin Boyle, his partner of 16 years, is making a challenge to the Defense of Marriage Act (DOMA), according to Pam's House Blend. DOMA, the 1996 statute permitting the federal government to ignore same-sex marriages performed by states, has been challenged in federal court before, but Merrill's case marks the first time the discriminatory law has been attacked in tax court.
Merrill has not paid federal income taxes since 2004 as part of an on-going protest against DOMA and the inequalities gay and lesbian couples face in the United States tax code. Merrill, who legally married his partner in California prior to the passage of Proposition 8, argues that DOMA is unconstitutional because states, not the federal government, have the power to define marriage. According to Merrill, "the government has no business in checking out the gender of two people who want to be married."
The litigation makes two points against DOMA: First, that federal tax benefits and obligations should not be restricted solely to opposite-sex couples to the exclusion of legally married same-sex couples, and second that DOMA's definition of marriage is based on religion, which violates the Establishment Clause of the First Amendment.
Merrill's case has been referred to Washington D.C. for an en banc hearing before all 19 judges on the United States Tax Court. Though the court is formally a part of the legislative rather than judicial branch of government, it has previously resolved constitutional issues in other cases. The challenge may be appealed to the Ninth Circuit Court of Appeals and then to the US Supreme Court for final adjudication.
A court date has not yet been set.
Have a question, comment, or response? Share your thoughts.How We Got Here: A Brief Analysis of “Gay” Marriage
Following the Stonewall Riots in 1969, homosexuals began aggressively seeking additional legal recognition of their relationships. Shortly thereafter in 1970, a couple in Minnesota applied for a marriage license. Richard Baker and Michael McConell applied for a marriage license from the Hennepic County clerk who subsequently denied their request. The two men claimed that they met statutory requirements for marriage and sought injunctive relief. The Minnesota Supreme Court ruled against the couple, citing marriage as being a predefined "institution" referencing its existence in the book of Genesis. According to the Court, marriage is defined as a union of man and woman, centered on procreation and childrearing, which same-sex couples were incapable of accomplishing.
Read more about the history of same-sex marriage here.
Have a question, comment, or response? Share your thoughts.GLAD Challenges DOMA in Federal Court
It sounds like the lawsuit has been brewing for a while, but this is exciting and unexpected news for me. Apparently Gay and Lesbian Advocates and Defenders (GLAD) has filed a lawsuit challenging the Defense of Marriage Act (DOMA) in federal court. The case is known as Gill v. Office of Personnel Management.
The DOMA is a federal law that has two main provisions:
- Section 2 allows each state in the Union to refuse to recognize, acknowledge, or give effect to a same-sex marriage performed in another state.
- Section 3 defines marriage, for the purposes of federal law, as a union between one man and one woman. This essentially prohibits the federal government from recognizing, acknowledging, or giving effect to any same-sex marriage, even if the marriage was legally performed in a U.S. state, such as Massachusetts, Connecticut, or California. In other words, Section 3 denies married same-sex couples the federal benefits extended to married opposite-sex couples.
GLAD's suit challenges only Section 3. GLAD alleges that DOMA § 3 is constitutional based on its text, but that it is unconstitutional as it has been applied to the specific plaintiffs in this case. In short, the argument is: The federal government can define marriage any way it wants, but it must give the same benefits to all married couples, whether heterosexual or homosexual.
Some of the benefits GLAD mentions specifically, which are denied to same-sex married couples, are:
- The ability of federal employees to obtain health care benefits for their spouses.
- The ability to transfer federal employee retirement benefits to one's spouse after death.
- The ability to transfer social security payments to one's spouse after death.
- Certain tax benefits.
- The ability to change the name on one's passport after marriage without going through additional court proceedings.
GLAD says that, since their clients have been denied these benefits, they are being denied equal protection, as required by the U.S. Constitution.
This lawsuit should have gay families across the country on the edge of their seats. Until now, most gay-rights organizations have been reluctant to file federal challenges to the DOMA, since the majority of Supreme Court Justices at the moment to appear to be anti-gay or indifferent to the plight of LGBT Americans.
For those readers who are a bit lawyerly, GLAD's brief can be found here.
Updates as they come!
Sources:
[Wikipedia]
[CruzLines]
[GLAD]
DOMA Takes a Hit
The Defense of Marriage Act ("DOMA") has been used as a weapon against the LGBT community, denying same-sex couples access to important federal marriage benefits, even when their state permits the union. Brad Levenson, a gay California federal employee, and his partner, Tony Sears, were unable to take advantage of Levenson's employee benefit plan due to their sexuality. Taking his grievance to the courts, Levenson argued that the denial of federal employee benefits to legally married same-sex couples is unconstitutional.
The 9th Circuit Court of Appeals, a federal appellate court, issued their decision this week:
"...to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouses' sex or sexual orientation, DOMA as applied contravenes the Fifth Amendment to the Constitution and is therefore unconstitutional."
Judge's order via Good As You
This makes a very large, very measurable dent in the influence of DOMA. Though the challenge was only to DOMA as-applied and was not a facial challenge -- limiting its application even within the 9th Circuit -- this could set the stage for other federal courts to follow suit and chip away at the anti-gay legislation.
Currently President Obama's political platform includes the full repeal of DOMA.
Have a question, comment, or response? Share your thoughts.A Further Reason Why Separate is Unequal in Marriage
The federal Defense of Marriage Act (DOMA) still places substantial limits on gay and lesbian partnerships, even if they have a state-recognized marriage (offered, as of yet, only by Massachusetts), or other form of state-recognized union (such as a civil union or domestic partnership). The disparity in tax filing is often the most obvious, which forces gay and lesbian couples to file as unpartnered individuals on federal paperwork. LGBT families must remember, however, that any federal agency will refuse to recognize your partnership regardless of your standing in-state.
Jason Hair-Wynn, a Massachusetts 26-year-old gay HIV/AIDS educator, discovered this when he applied for to the U.S. Department of State for a passport. According to a letter he received, his passport could not be processed with his hyphenated name because DOMA barred recognition of his Massachusetts marriage. Hair-Wynn is left with only three options: provide documentation proving common and consistent use of the hyphenated name for a period longer than 5 years; use special forms to explain the inconsistencies between his identification information that uses the hyphenated name, and the passport, which would use his maiden name; or pay a $135 fee for a probate court to issue an order reflecting his name change. It is important to note that heterosexual couples need only provide a marriage certificate.
This story emphasizes the evils of federalism. A state, acting as an independent sovereign, should have absolute authority over matters of marriage. The Supreme Court's refusal to hear any case pertaining to the unconstitutionality of DOMA speaks clearly to the injustice of the system. Congress has blatantly overstepped its bounds. The facts that gay and lesbian couples are either barred entirely from certain benefits (e.g. jointly filed taxes), or must pay fees for the same rights and privileges heterosexual couples obtain for free (e.g. legal name change, power of attorney) underscore the fundamental inequity of DOMA and its violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Until DOMA is repealed or fails a constitutional challenge, or until legislation akin to a current bill which permits a state-issued same-sex marriage license for federal paperwork, gay and lesbian couples must remember that the rights that attach at marriage should not be assumed to exist in LGBT partnerships. To avoid any future complications (including a denied passport and also the terrible situation of being kept from a partner's hospital room), gay and lesbian couples should consult an attorney who specializes in the area of LGBT family law. It may take hundreds or thousands of dollars to complete all of the paperwork necessary, but you should consider the cost to be an insurance policy against unwanted surprises.
Have a question, comment, or response? Share your thoughts.