Challenging DOMA

May 6, 2010 at 9:37 am 40 comments

by Brian Leubitz

Today is a big day. In a court in Boston, attorneys will begin the first serious challenge to the so-called “Defense of Marriage Act.” This lawsuit focuses only on Section 3 of DOMA, the part that blocks the federal government from recognizing the legal marriages of same-sex couples, in this case under Massachusetts law. From the Gay & Lesbian Advocates & Defenders (GLAD), who are the primary counsel on this case:

In GLAD’s view, DOMA Section 3 is unconstitutional and should be struck down by the courts or repealed by Congress.

GLAD believes Section 3 of the law violates the federal government’s promise of equal protection of the laws contained in the 5th Amendment of the United States Constitution. DOMA takes married couples and divides them into two groups – those who are respected and those who are effectively “unmarried” by operation of DOMA and are denied all federal legal protections and responsibilities. In GLAD’s view, there is no adequate justification for the federal government’s non-recognition of valid state marriages of same-sex couples.

DOMA Section 3 is also unprecedented because determinations of marital status are made by states and not the federal government. For the first time in our nation’s history, this law requires the federal government to override a state’s decision about who is married as to an entire class of marriages. DOMA Section 3 is a radical and unjustifiable departure from the division of power between the states and federal government.

We’ll be keeping a close eye on this trial, but unfortunately, there is once again no live video from the trial. The best source of information is GLAD’s twitter feed. So, are you going to be watching all of the developments of this trial like the Prop 8 trial? In some ways, it might just be as important to our lives as the Prop 8 trial.

Entry filed under: Uncategorized.

Immigration How Much More Hypocrisy?

40 Comments Add your own

  • 1. GAYGUY  |  May 6, 2010 at 10:13 am

    Just an opening statement about DOMA and Prop 8…all of this stuff still AMAZES me that the religious people would rather spend millions on taking away the rights of one group of people instead of spending that money to help the homeless FAMILIES in this country. I am hopefull about both cases…I HOPE I am right. I am one of those that has a man I LOVE in anoher country and so need it changed so we can be together…LEGALLY!!!

    • 2. PamC  |  May 6, 2010 at 5:45 pm

      There are literally HUNDREDS of references in the bible about helping the poor and feeding the hungry, taking care of widows & orphans and other social justice topics. There are less than 10 references to same-sex sex, and many of these are debatable or refer to temple prostitutes. Which group is defying god’s will (while claiming to believe in and follow their god)?????

      For those of us who don’t believe in their god, the hypocrisy is more than shameful–it’s a personal affront.

  • 3. bJason  |  May 6, 2010 at 10:19 am

    I will be watching. It is equally important. Is there a “non-twitter” source (Live-blog-type-site) such as this one where it can be followed? Any info would be helpful and I’ll try to find one as well.

  • 4. Straight Ally #3008  |  May 6, 2010 at 10:34 am

    This is sort of the “stealth” trial that, in the short term, may have the biggest positive impact. It won’t extend marriage equality to any states, but it will guarantee federal privileges to existing marriages. IMO, McGill is harder to argue against than Perry – how hard will conservatives fight for something that gives the federal government such sweeping power over the states, especially with a growing number of states (and DC) that have couples being treated unequally?

  • 5. Richard A. Walter (soon to be Walter-Jernigan)  |  May 6, 2010 at 10:40 am

    Yes, and since there is no live video from this trial, we need groups like Courage Campaign and AFER to keep us posted. Thanks for the good work, Brian.

  • 6. Kathleen  |  May 6, 2010 at 10:47 am

    For anyone who wants to read the legal filings, GLAD has them available here:

    • 7. bJason  |  May 6, 2010 at 11:16 am

      You are my Rock Star! :)

      • 8. Kathleen  |  May 6, 2010 at 11:28 am


  • 9. Sean  |  May 6, 2010 at 11:09 am

    As a straight guy, a Republican, and even a member of the Church of Jesus Christ of Latter-day Saints, I can say fundamentally, I believe that marriage is union between a man and a woman before God. But here’s the kicker, not everyone believes the way I do, and all are protected under the constitution. I have rights to worship the way I do, so why can’t others do what they need too. I don’t remember reading an “if you are gay you can’t have this” clause in the Constitution. It completely sucks if your partner dies, you are not entitled to his/her survivor benefits. This needs to go away.

    • 10. Straight Ally #3008  |  May 6, 2010 at 11:27 am

      And this is, indeed, what it all comes down to: equal justice under law. Here’s hoping a majority of your co-religionists will adopt your wisdom, Sean!

    • 11. Sheryl Carver  |  May 6, 2010 at 11:36 am

      I appreciate your stance on civil rights, Sean. Wish more folks felt the same way. Hopefully the human race will get there someday, but considering how many folks are still racist, it will take awhile (centuries?) before the tendency to view with fear those who are different or have different beliefs.

      At least in this country, the legal system usually does work to protect civil rights, but often it takes a long time to get there. Hoping our civil rights ARE finally going to be legally recognized very, very soon!

      Thanks again, Sean, for your support.


    • 12. Carvel  |  May 6, 2010 at 5:28 pm

      I respect you opinions and the fact that we disagree as to what a marriage really is. I don’t want to force my opinion on you or your church as long as I can get married in my church and the state and federal government will accept our right to religious freedom.

      The only real bone of contention with the Church of Jesus Christ of Latter-day Saints is that they are spending lots of money to fund the fight against marriage equality. Surely the everyday members of the church do not know that the upper management of the church is spending a lot of the church’s money fighting this issue. You are an amazingly independant thinker within your church to hold this opinion. Good luck.

    • 13. Kathleen  |  May 6, 2010 at 5:36 pm

      I know that not all Mormons oppose ss marriage. I met filmmaker Douglas Hunter at a No-on-8 rally in Pasadena, CA. His bio film on Rev. Susan Hunter is highlighted here:

    • 14. Richard A. Walter (soon to be Walter-Jernigan)  |  May 6, 2010 at 5:50 pm

      Thank you, Sean. My husband and I are Jewish (he is a rabbi), and we feel the same way. And we are both praying that more people of all religions who think like you do will come out and stand up for what is right–justice for ALL. You are truly a man of honor.

    • 15. GAYGUY  |  May 6, 2010 at 8:27 pm


  • 16. Chris  |  May 6, 2010 at 11:18 am

    Thank you for your thoughts, Sean. I wish there were more people like you who realize that just because you don’t personally believe something, doesn’t mean we should outlaw it for everyone else.

    • 17. Sean  |  May 6, 2010 at 12:33 pm

      I have gay family members, my best friend since High School is also gay. They all deserve to be happy.

  • 18. eDee  |  May 6, 2010 at 11:33 am

    Ever heard the saying “Everything I need to know I learned in Pre-School” (you’ve probably seen variations.)

    That can be applied here. If we can’t share the word marriage and all the privileges that go along with it, then we need to take it away from everyone.

    Let’s take marriage, put it on a high shelf until the Christian haters learn to share! And if they can’t then we will all have the same rights as Gay and Lesbian couples.

    For pete sake, my 5 year old gets it!

  • 19. matthew  |  May 6, 2010 at 1:07 pm

    I’m so hopeful about all the huge strides in gay rights that have happened in the last few years. 10 years ago when I first got together with my partner, the idea of getting married seemed like a pipe dream. We joked about it, but it was kind of like ‘Yeah maybe some day.” Back then we were still afraid to hold hands in public or speak up if we heard someone spouting off some anti-gay slur or whatever.

    Things are SO much different now. We’re no longer fighting for crumbs. Now we are fighting for an equal share of the whole god damned pie. I plan on savoring every bite.

    Soon it will be bye-bye DOMA. Bye-bye DADT. Hello national marriage equality, Hello ENDA..

  • 20. Kathleen  |  May 6, 2010 at 1:08 pm

    UPDATE: Plaintiff’s have filed their Memo in Opposition to Proponents’ and Tams’ motion to strike and/or reconsider evidence and testimony (previous docs 640 and 642)

    Also filed:
    Doc 660 – Opposition by City and County of San Francisco to motions to strike and/or reconsider
    Doc 661 – Declaration of Therese M. Stewart in Support of Doc 660

    I’ll post links to these docs in separate posts to avoid getting trapped in moderation.

    • 21. Kathleen  |  May 6, 2010 at 1:15 pm

      Doc 660 – Opposition to Motions to Strike and/or reconsider (docs 640 and 642) by City and County of San Francisco.

    • 22. Kathleen  |  May 6, 2010 at 1:16 pm

      Doc 661 – Declaration of Stewart in support of Doc 660

    • 23. James Tuttle  |  May 6, 2010 at 3:51 pm

      So Kathleen, when do we find out if Walker allows them to strike the evidence or not ?

      • 24. Kathleen  |  May 6, 2010 at 4:03 pm

        Per the Minutes Entry from the hearing held April 28 (Doc 650), the Proponents and Tam have until Monday May 10 at noon to file their replies to the opposition. So far, Walker hasn’t ordered a hearing on the matter, but that may change. In any event, it won’t be until after Walker reviews the replies.

  • 26. Frozt  |  May 6, 2010 at 3:40 pm

    The embarrassing thing is that we even need to challenge the policy in court. The administration is taking steps to repeal Don’t Ask, Don’t Tell legislatively, but has not taken a single step on DOMA. Proponents of DADT can at least support it by making (faulty) claims about unit cohesion, but what argument can Democratic lawmakers forward for why they wouldn’t repeal DOMA except for a complete indifference to the fundamental rights of the gay community?

    • 27. Carvel  |  May 6, 2010 at 6:00 pm

      Dear Frozt. You are right in that Obama could call for the repeal of DOMA. We are fortunate in that the law was poorly drafted in a hurry and rushed through. For that reason, it should fall in the courts. It is possible that given the right circumstances that a better and harder law to fight might have been passed.

      I was wondering whan a challange to this federal law would finally be brought. The federal government can not fail to recognize a valid state marriage. The Supreme Court has stated in Romer v. Evans where the supreme Court considered a challenge to an amendment to the Colorado Constitution. The state’s voters in 1992 passed an amendment to the state constitution that nullified local anti-discrimination protections for homosexuals and prohibited passage of any such anti-discrimination laws in the future. The Supreme Court in a 6-3 vote held that the Colorado amendment violated the 14th Amendment guarantee of equal protection of law. The court stated, “A state cannot so deem a class of persons a stranger to its laws,…” Justice Kennedy wrote, “…the amendment imposes a special disability upon …” homosexuals who are then, “forbidden the safeguards that others enjoy or may seek without restraint.”

      There should not even be a trial, just a motion for summary judgment and briefs submitted to the court. The court could then render a judgment.

      • 28. Kathleen  |  May 6, 2010 at 6:07 pm

        @Carvel, plaintiffs have filed a Motion for Summary Judgment, and on Feb 16, a Reply Memo in Support of their Motion. I haven’t been following the case closely enough to know where in the proceedings it is.

      • 29. John  |  May 7, 2010 at 7:44 am

        Obama’s Department of Justice has issued at least one brief on how DOMA is constitutional and good for America. It was disgusting (comparing same-gender marriage to incest and pedophilia, for example).

        I don’t expect Obama to call for the repeal of DOMA ’til he’s on the campaign trail again, wanting our votes.

  • 30. Ronnie  |  May 6, 2010 at 6:52 pm

    subscribe….Repeal DOMA NOW!!!…thats all….luv ya’s…..<3…Ronnie

    • 31. Ronnie  |  May 6, 2010 at 6:53 pm

      lol…the funny things is that I typed that and didn’t even check subscribe…ok…now I’m good…<3…Ronnie

  • 32. Wade MacMorrighan  |  May 7, 2010 at 11:50 am

    Anyone know why they have not sought to challenge the section of DOMA that prevents a marriage from being recognized across state-lines, should a resident have to move for purposes of employment, etc.? That seems a no-brainer, too!

    BTW, I also wonder why Mags or Brian from NOM seem so silent on this legal challenge, ‘eh? ;oP Of course, Maggie was not only the woman who declared that the purpose of a trial is NOT to educate the public! But, it was also she who said on Lou Dobbs (CNN) that, “I am the one who is standing for the right of American taxpayers not to have a union, same-sex unions treated as marriage without their consent.”

    • 33. Carvel  |  May 7, 2010 at 1:50 pm

      Dear Wade
      I do not know why they have not challanged it across state lines, but when you think about it the first step to take DOMA apart is to take it apart within a state. that would not require any evidence or even much of a hearing. It is completely a legal issue and the only question is does the federal government have the right to single out a class of people that are validly married according to state law and federally declare that they are not married and that the federal government does not have to recognize the marriage.

      That should be simple to decide. Then the next step is to challange the moving from one state to another and the moving of a valid state marriage to a state that does not recognize SSM. This is harder because you have competing state interests from state to state. Once the federal court has taken the baby step of declaring that the federal government can not, then the next logical step which is what Perry is deciding is to decide that SSM is a fundamental right and that states can not deprive the people of that right. The step between the same state recognition with the federal government and the Perry case if the factual case you have proposed. It is sometimes difficult to get a court to take two giant steps with one ruling.

      I think that taking intermediate baby steps of logicl progression is more likely.

      perhaps Maggie is silent because she realizes we are tired of hearing and seeing her put her foot into her mouth on public TV and at public appearances. A good argument against Maggie is that I didn’t get to vote on her marriage so why should she get to vote on mine. I didn’t get to vote on her religion so why should she get to vote on what I believe. I didn’t get to vote to give breeders property, insurance and inheritance rights so why should she get to vote on what property, insurance and inheritance rights I have with my spouse. Why are we having government tell religions what two people can marry? Shouldn’t that be entirely left to the religions.

      The Catholic church used to forbid a Catholic from marrying a non-catholic. The state never did, so why didn’t they get organized campaigns together to pass laws against that. the truth of the matter is they did against interratial and used the religious argument to support that. We all know that and have seen the quote on TV about Almight God separating the races and but for the acts of man they would still be separated today.

      Of course the purpose of a trial is not to educate the public or even the court. When you already have you mind made up and you got the information straight from the source, GOD, then who needs to be educted about anything. Certainly not the court or the public.

      They are afraid of education until you have been educated in their christian colleges that are not acreditated by the same institutions that certify normal colleges. They had to form their own associations to certify and give some respectibablity to their “institutions of higher learning” and I use that term in jest.

      Again, I am sorry to rant and rave. But the time for real, true equality in America has come and we as impatient with the progress. I predict that if the Supreme Court does not give it to us and the lower courts do not strike down DOMA that there will possibly be violent civil unrest in this country. It would hurt our cause, but like the Stone Wall riots it will mark the beginning of the end of discrimination for us. I only hope and pray that the courts see the handwriting on the wall and give us equality and dignity in our lifetime.

  • 34. GAYGUY  |  May 7, 2010 at 4:01 pm

    Could NOT agree with you more Carvel! I do think that the courts and judges CAN see the battle for what it is…an attempt at religion to oppress a section of society. That is why the state allowed the marriages in Ca. in the first place…there is no NON-religious reason for denying them…bottom line, if marriages were only religious, they have a point, but they are ALSO civil…religion CAN NOT/SHOULD NOT control civil!

  • 35. Carvel  |  May 7, 2010 at 6:41 pm

    Dear Gayguy,

    Even if marriages were religious, as long as one valid religion (just like one valid state) allows and permits SSM then how can government which is religious neutral enact laws to opress any religion. Marriage has for thousands of years been purely a contractual matter between two consenting parties who of legal age to contract. The age to contract a marriage has changed over the ages and can and does vary from state to state. the age to contract a marriage is different than the legal age to contract other obligations.

    the only problem that I have with the state regulating marriage and all these problems is that the state has set up an artificial barrier to SS couples to get the civil benefits of the ecconomic and other incentives that come with the institution of marriage.

    We also learned that separate but equal is not equal and is totally unamerican. So the courts are caught in a dilema of applying a racial standard of separate but equal that is already declared unconstitutional by the Supreme Court to civil unions. And the truth of the matter is that even where they have them they are not equal as they always hold back some rights. In this case, heirship rights, health care benefits and all sorts of other things. The list goes on and on.

  • 36. GAYGUY  |  May 7, 2010 at 8:24 pm

    Agreed, and I think that that is what the judges are starting to see! You CAN NOT have two sets of rules for the same thing!

  • 37. Kathleen  |  May 8, 2010 at 2:09 pm

    Michael Ginsborg has a good summary of the May 6 summary judgment hearing for Gill v OPM, with links to other sites’ reports.

  • 38. Bolt  |  May 8, 2010 at 7:59 pm

    I like Ted Olson’s approach better. If he was leading the challenge to DOMA he would aim for absolute annihilation of it!

  • 39. Carvel  |  May 8, 2010 at 9:10 pm

    I don’t know that Ted Olson would do that. It is unwise to ask a court to make a decision on issues that are not presented directly to the court for your case. the court could open up the hearing for the presentation of evidence. If you can win and strike out parts of DOMA then you have begun to chip away at it. Once you take the teeth out of it in one state, then the entire meaning of the repeal or striking of DOMA becomes apparent.

    In this case we want that certain part of DOMA ruled unconstitutional by summary judgment. Why open the court hearning to broader and wider issues. Then when it falls, it them becomes almost moot that the rest will probably fall with summary judgment. Why ask a court to rule on a bigger picture when you only have the smaller picture in their courtroom. It is too much to ask of a court that probably does not want to have to decide the issue anyway.

    The plaintiffs want to win their case. They are not out about the greater good of society, just their own good. Yes, we all want to do good for society, but our whole point in SSM and in DOMA is our rights and not a general crusade for giving homosexuals sweeping sexual and marriage rights. We want to put the everyday face of the people next door to this case and not to generalize it. It is easier to give Bill and Fred their rights than to ask the court to grant rights ro between 5 and 15 percent of the population when over 50 percent of the population do not want them to have these rights.

    Fight the fight you have a chance of winning and let the tide of the changing public opinion sweep away the rest of the problems. you make a small hole in the damn, the damn will soon fail.

    Yes, I am impatient too, but take the slam dunk case and win and then take the NEXT STEP when it comes up in the natural course of legal cases. And it will come up very soon after your first win. It is the next logical step.

  • 40. Richard A. Walter (soon to be Walter-Jernigan)  |  May 9, 2010 at 3:38 pm

    Her is just one more reason I am willing to fight as long and as hard as necessary for marriage equality. If reading this article does not point up the need for it, then what will?


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