VIDEO: More on the DOMA challenges by GLAD and the ACLU

November 9, 2010 at 1:33 pm 32 comments

Karen has more to add on the DOMA cases, cross-posted from LGBTPOV. For a link to the news that Chris Geidner broke last night, click here. — Eden

By Karen Ocamb

DOMA suit filmWhile the legislative fight for equal rights seems roiled in chaos, the judicial fight is gaining momentum. Gay & Lesbian Advocates & Defenders (GLAD) filed another constitutional challenge to the Defense of Marriage Act (DOMA) – the federal law that prohibits any recognition of same sex marriages. DOMA has also been used by antigay legislators as an excuse to not recognize or deny any legal form of same sex relationship at all.

Last summer, GLAD won a challenge to DOMA in Gill v. OPM in a federal court in Massachusetts, which is now on appeal. On Tuesday, Nov. 9, GLAD filed another challenge in Pedersen v. OPM, brought in Connecticut on behalf of same-sex couples and a widower who live in Connecticut, New Hampshire and Vermont.

The ACLU LGBT Rights Project is also filing an Equal Protection constitutional challenge to DOMA today in New York. Georgetown University law professor Nan Hunter of the Williams Institute explains: “What is new and different about Windsor v. United States is that it is the first case to challenge the estate tax, and it seeks relief on behalf of a person who does not live in a state that performs same-sex marriages.”

Edith Windsor married Thea Spyer in Canada in 2007 and they lived in New York, which recognizes same sex marriage. But after Spyer died, Windsor had to pay a huge estate tax – which, Hunter explains, “she would not have had to pay if the federal government had recognized the marriage, as New York state does.” Windsor wants to recover that $350,000 – which is part of what is at stake. Hunter notes that a film about the Windsor-Spyer relationship – “Edie and Thea: A Very Long Engagement” – won the prize for best documentary at the 2009 Hamburg Lesbian and Gay Film Festival and the New York Times featured their marriage in its wedding announcements.

Hunter explains what it all means:

[L]ike Gill, the legal claims in Pedersen are founded on the Equal Protection Clause.

Although the Prop 8 litigation has gotten much more attention, mostly because of the drama of the 2008 election in which Prop 8 was adopted, followed by the drama of the trial before Judge Walker, the Gill/Pedersen litigation – together with Windsor [another case Hunter discusses] – is more important. The plaintiffs have a better chance of winning before the Supreme Court in the DoMA challenge and, paradoxically, if they do win, the ramifications could be much more significant. The latter point will depend on whether the Prop 8 case is decided on standing rather than on the merits or on grounds that apply only to California. In either of those situations, the direct precedent will be limited to one (albeit incredibly important) state.

If the Supreme Court invalidates DoMA, however, same-sex married couples would gain access to federal benefits and programs, which generally speaking are far more important than state law benefits. Moreover, assuming that their marriage was legal in the state where it was performed, they would be eligible for federal benefits no matter where in the U.S. they currently lived. Their local state of residence might deny them recognition for state law purposes, but the longstanding previous policy that recognition for federal law purposes depended on whether the marriage was legal where performed (the place of celebration rule) would be reinstated.

Many gay couples who would choose to marry see little point in doing so when it would not change their status under federal law.

Eliminating DoMA would transform the legal landscape.

GLAD’s Mary L. Bonauto explains GLAD’s new DOMA challenge here.

Entry filed under: DOMA trials.

BREAKING: Double dose of DOMA challenges in court Maggie Gallagher has been stage-managing a marriage morality play for eons. Yet we’re the inauthentic ones?!

32 Comments Add your own

  • 1. JonT  |  November 9, 2010 at 1:36 pm

  • 2. Ann S.  |  November 9, 2010 at 1:36 pm

    Pleeeeease release me, let me gooooooo-o-o-o-o

    No, don’t, actually.

  • 3. Kathleen  |  November 9, 2010 at 1:43 pm

  • 4. Richard A. Walter (soon to be Walter-Jernigan)  |  November 9, 2010 at 2:14 pm

    And now the case in California’s Northern district is beginning. Is it possible that we are seeing the beginning of the end for DOMA? I hope so!

    • 5. truthspew  |  November 9, 2010 at 4:00 pm

      I think we are. For the first time we’re seeing active attacks against an unconstitutional law.

  • 6. Alan E.  |  November 9, 2010 at 2:26 pm

    subscribing then getting back to work

  • 7. Sagesse  |  November 9, 2010 at 2:37 pm

    Wonder how many cases it will take before Congress (or the Supreme Court) pay attention.

    • 8. Ronnie  |  November 9, 2010 at 2:52 pm

      I wondering the same thing…..<3…Ronnie

  • 9. 415kathleenk  |  November 9, 2010 at 2:50 pm

    The news of two more lawsuits challenging DOMA is incredibly good. I do have one small quibble with Nan Hunter’s take on the Prop 8 lawsuit. Although arising out of a CA inititiative, the lawsuit does a couple of significant things. One, it’s based on the Federal constitution and Boies and Olson have always intended it be decided at the federal ( Supreme court level). Its successful conclusion will set a monumental precedent- all of the state DOMA laws would be inconstitutional. It also sets out in one place all the issues needed to decide the idea of LGBT people as a protected class- the strict scrutiny. It also uses equal protection principles under the Federal constittution. So ALL of this litigation is hugely important. I wish Hunter, et. al great luck on their challenges but don’t forget about the ramifications of the Prop 8 challenge.

    • 10. Mouse  |  November 9, 2010 at 2:56 pm

      And the same arguments that make Prop 8 unconstitutional at a Federal Level apply to the federal DOMA. It might superficially be just about CA law, but the precedent it sets is bigger than that. We’ve got phenomenal testimony and evidence on our side while we’re going up against “I don’t know” and “I don’t need evidence for that.” Olson and Boies have truly laid fantastic groundwork for more than just CA’s discrimination amendment.

    • 11. Kathleen  |  November 9, 2010 at 3:02 pm

      My understanding of Nan Hunter’s point about the Prop 8 case is that it’s quite possible it will be limited in its application for a couple of reasons.

      First, it’s possible no one will have standing to and appeal and if this is the case, the appeals court may never come to a decision based on the merits. This would leave Walker’s decision in place, but it would not have an effect outside of California. Secondly, even if the case makes it to the U.S. Supreme, and the Court agrees that Prop 8 is unconstitutional, it could decide it based on facts that are limited to the situation in California.

      This is what Hunter meant when she says, “The latter point will depend on whether the Prop 8 case is decided on standing rather than on the merits or on grounds that apply only to California. In either of those situations, the direct precedent will be limited to one (albeit incredibly important) state.”

      BTW, Hunter isn’t bringing any of these challenges and as far as I know, is not involved in any of the litigation.

  • 12. Matthew  |  November 9, 2010 at 4:33 pm

    Whats different about any other place compared to CA? Other than the fact that there are 18000 legally married SS couples in CA, and not so many in say Alaska, where we put discrimination in our constitution.

    Marriage is a civil right. Everyone gets the same rights or no one should. SCOTUS would be doing a disservice to the country if they didn’t take up this case of epic magnitude.

    DOMA will be gone soon, DADT will be gone soon. Prop 8 will be struck down. The flood gates of equality will be opened. In the words of Blankenhorn, we’ll become more American the day the things happen.

    • 13. Ann S.  |  November 9, 2010 at 4:34 pm

      Whats different about any other place compared to CA? Other than the fact that there are 18000 legally married SS couples in CA, and not so many in say Alaska, where we put discrimination in our constitution.

      That’s the difference, right there. We had marriage equality in California, and Prop 8 took it away. Is that a distinction that will be important to the court? We don’t know yet.

      • 14. Alan E.  |  November 9, 2010 at 4:39 pm

        I agree that the timeline in California is very different from the rest of the country. It could set a precedence for trials in other states, though, who want to challenge the law in each state. The states should be similarly situated to have an effect outside of the individual state (like a law that was put into place before any SS marriages took place). One could always review the propaganda and official voter guides for more info to use in the trials.

    • 15. Richard A. Walter (soon to be Walter-Jernigan)  |  November 9, 2010 at 4:35 pm

      Matthew, many of those 18,000 couples live here in North Carolina. I know, because I heard many of them talking about their plans to go to California to get married, and saw the marriage certificates afterward. This is part of why this case is so important nationwide. Some of the 18,000 couples live in other states.

    • 16. grod  |  November 9, 2010 at 8:47 pm

      Why is Maine not in the same or even in a strong position were the law, though not proclaimed, was overturned by voter initiative. Again, with much out-of-state (NOM) monies that still has not been disclosed as prescribed.

      • 17. Ann S.  |  November 9, 2010 at 9:08 pm

        I don’t believe any marriages of same-sex couples were performed in Maine before the law was overturned. Also, they’re not in the 9th Circuit.

  • 18. Rhie  |  November 9, 2010 at 5:35 pm

    Tick Tock

  • 19. MichGuy  |  November 9, 2010 at 5:37 pm

    Are the NEW DOMA lawsuits considered “As-Applied” challenges or are they considered “Facial” challenges ?
    If I understand correctly “As-Applied challenges only affect the litigants in the particular case and do not affect all gays and lesbians And Facial challengs I think affect all gays and lesbians instead of just the ones who filled the lawsuit.

    This is a repost. :P

    • 20. Alan E.  |  November 9, 2010 at 6:07 pm

      As I read starting on page 44, they are calling it unconstitutional as applied to the plaintiffs, but the manner it is applied. So it would affect the services provided, not just the people in this trial.

  • 21. Ron O.  |  November 9, 2010 at 8:28 pm

    If same sex marriages are never legalized, domestic partnerships should receive the same financial advantages that legally recognized marriages receive. Proponents of same sex marriage say we already have the same rights under domestic partnership. This is not true. We pay much more in taxes and this is not EQUAL or FAIR!

    • 22. Richard A. Walter (soon to be Walter-Jernigan)  |  November 9, 2010 at 8:58 pm

      Exactly! As it stands right now, if BZ leaves me anything in his will, the only places where we can be living when he dies, and my rights to inherit as his husband will be assured are Connecticut, Iowa, Vermont, New Hampshire, and Washington, DC. And there is one daughter who has two allies that I know will contest the will if I am even left one red cent or the house. She will stop at nothing to make certain that I am on the street if BZ dies before I do. This is why Maggie, Brian, Louis, Tony Perkins, James Dobson, Steve Lively and all the rest need to sit down and get out of the government. EQUALITY NOW!!!!!

      • 23. Ann S.  |  November 9, 2010 at 9:10 pm

        Richard, your rights under his will are not necessarily dependent on being legally married. If he has a legal will, that should be sufficient.

        • 24. Rhie  |  November 10, 2010 at 2:48 am

          Should be, but apparently isn’t. I’ve even seen cases where a heterosexual couple’s will was ignored when the parents of the deceased disagreed. How does a non-married couple protect their rights completely?

          (This isn’t entirely rhetorical. My boyfriend and I are wondering this. We don’t plan to get legally married for a variety of reasons but want to protect our rights in regards to each other)

        • 25. Richard A. Walter (soon to be Walter-Jernigan)  |  November 10, 2010 at 7:21 am

          Rhie is right. What should happen is not always what happens. Especially in North Carolina. And if the party who files the challenge happens to be Southern Baptist, that only makes matters worse.

          • 26. Ann S.  |  November 10, 2010 at 10:41 am

            I’m afraid I can’t make an informed response to either your question or Rhie’s. A good estate lawyer in your state would be the best person to advise you, and I am neither (neither an estate lawyer, good or bad, or in your state).

  • 27. Kalbo  |  November 9, 2010 at 9:32 pm

    The day DOMA is finally struck down can’t come soon enough!

    It’s looking more doubtful that UAFA will pass anytime soon. I hope the lame-duck Dems would get it done, but they don’t seem too eager to do anything after their big defeat in the House. :-(

    • 28. Sagesse  |  November 10, 2010 at 5:41 am

      The danger with UAFA is that it will be swept into a much larger controversial immigration reform bill where it will become a bargaining chip to get the larger, very important bill passed. Remember the abortion provisions in health care reform.

      UAFA is at risk either way, but in an environment where there is public support for LGBT rights, it affects a very limited number of people (minority couples who are also bi-national) that perhaps it could pass on its own. If ENDA can pass on its own (and it might) then UAFA should have a chance.

  • 29. Matthew  |  November 9, 2010 at 11:43 pm

    @Ron o
    I think you got proponents confused with opponents. Seemed like you were saying people who are for SSM think DPs are =

    Personally, I wish people would stop saying ‘gay marriage’ and ‘same sex marriage. There is no such thing. It’s just marriage, and it should be the same regardless of if we have innies or outies

  • 30. Sheryl, Mormon Mother of a wonderful son who just happens to be gay  |  November 10, 2010 at 1:05 am

    Innies or outies, I immediately thought of belly buttons. But, I like your analogy.

    Sheryl, Mormon Mother

    • 31. Richard A. Walter (soon to be Walter-Jernigan)  |  November 10, 2010 at 7:17 am

      I wish Lora would post again about the woman who found Lora’s wedding so beautiful and loving that she went home with a renewed commitment to her own wedding, thereby proving that allowing same sex couples to get married adds to the institution of marriage. I am quite sure there are others out there who haven’t read that yet, and it totally disproves what NOM, AFA Focus on the Family, et al. are trying to get people to believe.

  • 32. Sagesse  |  November 10, 2010 at 6:05 am

    Good article on LCR’s efforts for DADT repeal

    Log Cabin Republicans’ leader fights ‘don’t ask, don’t tell’


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