Wednesday, March 4, 2009

New Gay Rights Test for Obama: Gay Married Couples File Suit Challenging Defense Of Marriage Act

15 gay and lesbian individuals from Massachusetts have filed a lawsuit challenging the legality of the Defense of Marriage Act (or "DOMA"). All of the plaintiffs legally married after the state lifted its ban on same-sex marriage. The legislative change followed a ruling by the Supreme Judicial Court which held that prohibiting same-sex violated the state constitution.

What Is DOMA? What Do the Plaintiffs Want?
DOMA has two main provisions. One provision defines "marriage" in heterosexual terms for purposes of federal law. This means that any federal right or benefit available to "married" persons is restricted to opposite-sex couples. Accordingly, same-sex married partners cannot jointly file federal taxes, do not qualify for survivor benefits under social security or federal pensions, cannot include a spouse in a health plan for federal workers, and do not qualify for many other federal rights and privileges reserved for married individuals. The plaintiffs in this case only challenge the exclusion of same-sex married couples from federal benefits.

A second provision of DOMA provides that states do not have to recognize same-sex marriages that are legal in other states. In other words, the statute purports to allow states to deny "full faith and credit" (a constitutional concept) to same-sex marriages. The constitution, however, requires states to extend full faith and credit to "acts, records, or judicial proceedings" from other states. Under this concept, a marriage performed in one state is legally valid in other states; similarly, a judgment imposed by a court in one state has legal force in others. DOMA tries to undo this principle in the context of same-sex marriage. Many legal scholars doubt the constitutionality of this provision.

The Massachusetts federal lawsuit only seeks equal benefits for the plaintiffs. It does not ask the court to rule that prohibiting same-sex marriage violates the constitution. So, from that perspective, it is a "safe" case. Because the vast majority of the public disagrees with the legalization of same-sex marriage, it is unlikely that a court -- especially the conservative Supreme Court -- would issue a ruling striking down laws that prohibit same-sex marriage.

Test for Obama?
Obama has usually taken a favorable, even if inconsistent, position on glbt rights. He lost some credibility among glbt individuals, however, by opposing same-sex marriage and choosing Rick Warren to speak at his inauguration. Like Obama, Warren opposes same-sex marriage, and he campaigned in favor of an amendment to the California constitution that defines marriage in opposite-sex terms. Warren defended his opposition to same-sex marriage by arguing that it is the moral equivalent of statutory rape and incest.

Obama's Past Positions on DOMA
Although Obama currently favors the repeal of DOMA, his position on the subject has been somewhat inconsistent. During his campaign for Senate in 2004, Obama wrote a letter to the Windy City Times -- a glbt-themed newspaper in Chicago -- that takes a firm stance supporting gay rights issues. In the letter, Obama says he has always opposed DOMA, and he promises to vote to repeal the statute if elected:

For the record, I opposed DOMA [ the Defense of Marriage Act ] in 1996. It should be repealed and I will vote for its repeal on the Senate floor. I will also oppose any proposal to amend the U.S. Constitution to ban gays and lesbians from marrying. This is an effort to demonize people for political advantage, and should be resisted....

When Members of Congress passed DOMA, they were not interested in strengthening family values or protecting civil liberties. They were only interested in perpetuating division and affirming a wedge issue....

Despite my own feelings about an abhorrent law, the realities of modern politics persist. While the repeal of DOMA is essential, the unfortunate truth is that it is unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress.... [Note: All of the ellipses appear in the original text.]
Although the 2004 letter states that Obama opposed the enactment of DOMA in 1996 and that he would vote to repeal it, a few months earlier in 2003, Obama completed a candidate's questionnaire in which he stated that he did not support the repeal of DOMA. In 2007, Bill Burton, a campaign spokesperson, tried to explain the shift, saying that "after hearing from gay friends who relayed to Obama how hurtful it was for the bill to be law, he supported its repeal. But this does not explain how he could oppose DOMA in 1996, support it in 2003, and oppose it in 2004.

During his presidential campaign, Obama took a position favoring the "complete repeal" of DOMA, including the full faith and credit provision. But in 2004, he stated that the full faith and credit clause does not require a state to honor out-of-state marriages that its law prohibits.

Obama's Current Position on DOMA
As for his current position, the WhiteHouse.Gov website contains the following language regarding DOMA:

Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
This position, which supports the equal provision of federal benefits to same-sex and opposite-sex married couples, is precisely the argument of the litigants in the Massachusetts lawsuit. Accordingly, the case could test Obama's position on the subject. The Department of Justice will represent the government, and DOJ lawyers will likely try to "win" the case by defending the legality of DOMA. But if Obama believes that DOMA is abhorrent and that it should be repealed, then presumably he could direct Attorney General Holder to seek some type of delay in or resolution of the case (such as a settlement) while he works with Congress to repeal DOMA.

Obama Pushed to Act on GLBT Rights
Although it remains unclear what position Obama and DOJ will take in the Massachusetts anti-DOMA litigation, this is yet another situation that will likely test Obama's stated support for glbt rights. In another pending litigation that challenges the discharge of a lesbian from military service, DOJ will soon have to take a position concerning the legality of Don't Ask, Don't Tell (or "DADT"). Furthermore, a House Democrat has reintroduced legislation that would repeal DADT altogether. Although Obama has stated that he opposes DADT and that he would seek to repeal it, he has directed military officials to "study" and report on the subject before he moves on the issue in Congress.

All of these recent developments push President Obama to act on glbt issues much more rapidly than he would have acted on his own. Historically, social movements have only created change (in either political direction) by agitating and engaging political leaders, rather than passively accepting their positions. If pushing Obama generates positive developments on gay and lesbian rights, perhaps other liberal movements will emulate glbt social movement actors and their allies and push for greater reform.

Related Readings on Dissenting Justice:

Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?

Don't Ask, Don't Tell Heats Up in Courts and in Congress

Obama Will Order Military to Study Whether It Should Stop Discriminating Against Gays and Lesbians

Don't Ask, Don't Tell, Don't Hold Your Breath

Stonewalling on Don't Ask, Don't Tell? No Action Until 2010

Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights

Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

Rick Warren versus Don Imus: Obama's Inconsistent Positions

The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table

Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone


Jason Papanikolas said...


One quick comment: according to my wife and other tax professionals that I have talked to, you can, in fact, file jointly as a married couple on your federal taxes if you live in one the states that allows same-sex domestic couples, gay marriage, etc.

I'd want to verify that first, but that is my understanding that this is the case. The IRS has deferred to the various states' definitions (probably for simplicity's sake).

Darren Lenard Hutchinson said...

Jason - DOMA says that under federal law "married" means heterosexual marriage. I cannot see how IRS could alter or ignore that.

Also, the GAO has identified 1100 benefits for married couples that DOMA denies to same-sex couples. Joint tax filing is just one of them.

Finally, I think that the more important question is: why should these 1100 benefits go to married individuals anyway? The reasons behind this do not make sense today, where fewer people marry and where support relationships take many forms.

Jason Papanikolas said...

We've covered alot of this ground before,so I'll refrain from doing so again.

As for you question, I guess the answer lies in how we view we view societal good. For instance, I am in favor of extending these 1100 benefits to gay couples (essentially extending the defenition of marriage to include gay marriage) for reasons of societal good. In other words, the societal benefits of gay marriage are outweighed by the societal costs.

This analysis does not necessarily hold true for single-parent families or co-habitating college roommates, though both may be defined as a form of support relationship.

Ultimately, it is my belief that there a legitimate governmental purpose to restricting the marital priviledge, i.e. the promotion of marriage promotes the nuclear family group, which a lot of sociological evidence suggests reduces crime and improves education outcomes in children.

Jason Papanikolas said...

To sum the previous comment better, it is my belief that the only legitimate basis for governmental social policy is the promotion of the nuclear family. As marriage promotes the family better than non-marriage, it is a legitimate exercise of governmental authority to restrict the marital priviledge.

Any extension of the priviledge must ultimately further the promotion of the nuclear family. There is no evidence to suggest that gay couples are any less capable of being a nuclear family than heterosexual couples. Therefore, there is no reason to not extend the priviledge to them.

College roommates and single-parent households are not by definition nuclear families and, therefore, the priviledge should not extend to them.

Darren Lenard Hutchinson said...

The evidence on "nuclear" families is highly skewed. It does not control for the relatively higher income, more adult attention, etc., in those families. But higher income and adult attention are not unique to nuclear families, and marriage does not always come with these resources.

Darren Lenard Hutchinson said...

"College roommate" suggests a transient and situational relationship. Some could argue that support is necessary there, but it is usually not the case. If anything, the roommates are probably dependent upon their parents. But I can imagine other situations where benefits might play an important role - a grandmother raising a grandchild; two close friends who take care of each other in old age, etc.

Anonymous said...

Has DOMA ever been challenged as violative of the Full Faith & Credit Clause of U.S. Constitution which simply put requires every state to recognize the acts (laws), judgments,etc. of every other state ? (which would then include those states that allow same sex marriage)

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