PRIDE SPECIAL REPORT: GLADLY CHIPPING AWAY AT DOMA

Boston-based Gay & Lesbian Advocates & Defenders (GLAD) won another round of their litigation campaign against the Defense of Marriage Act (DOMA), which denies same-sex couples many of the federal benefits straight couples receive. GLAD outreach director Carisa Cunningham explains DOMA, the most recent ruling and prospects for taking the case to the Supreme Court.

Advocates for gay marriage rights won another critical battle this past week in a legal challenge to DOMA, the federal Defense of Marriage Act. Enacted in 1996, DOMA establishes a federal definition of “marriage” as only a legal union between one man and one woman as husband and wife. GOP heavies like then-Speaker of the House Newt Gingrich rallied behind DOMA as a platform issue for the 1996 elections, with only a handful of Dems protesting and President Clinton himself signing it out a “long-standing” opposition to same-sex marriage. Bush II’s views on the issue of same-sex marriage hardly require review, and his administration defended DOMA against a number of legal challenges.

For the past decade and a half since its enactment, LGBT advocacy organizations have been slowly chipped away at DOMA through targeted court cases and public outreach efforts. Boston-based Gay & Lesbian Advocates & Defenders (GLAD) has been at the forefront of challenging DOMA, having successfully argued before the United States District Court of Massachusetts that DOMA violates the Constitution’s equal protection principles by discriminating against gay and lesbian couples when it comes to federal benefits and tax status.

In his July 2010 ruling, Judge Tauro declared that DOMA’s definition of marriage “fails to pass constitutional muster,” handing GLAD attorneys the first successful ruling against the statute at the federal level.

Since that time, we have seen the Obama administration “evolve” considerably on same-sex marriage, with the President coming out against DOMA as unconstitutional and instructing the Department of Justice to cease to defend its definition of marriage in court.

This past Thursday, GLAD scored again in the First Circuit Court of Appeals, which upheld the July 2010 ruling.

In a unanimous opinion, the First Circuit justices wrote that “Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

Over the weekend I caught up with Carisa Cunningham, GLAD’s Director of Public Outreach, to break down the ruling and map out GLAD’s next steps as the case moves toward the Supreme Court.

First, give me a quick rundown of the case itself. How was GLAD involved?
GLAD represented seven same-sex couples and widowers who were married in Massachusetts, but were denied federal benefits because of DOMA. This included denial of Social Security benefits after the death of one spouse, and not being able to file taxes jointly with the IRS.

Why has GLAD been dedicating such effort to overturning DOMA, especially in Massachusetts where gay marriage is legal?
There are over 1000 federal laws and programs that rely on the definition of marriage, so DOMA is a bread-and-butter issue that can cause gay couples to lose out on consequential programs and benefits.

Many gay couples still don’t understand what DOMA is until they run into it, when they are stunned to find that they are denied the benefits afforded straight couples.

This is a classic equal protection issue, where married couples are not equal in the eyes of the federal government. You’re looking at groups of citizens that are similarly situated (i.e., married), but treated differently, as straight married couples can receive rights, responsibilities and benefits from marriage denied to gay couples.

There’s no justification for treating these groups differently under our Constitution.

Who has been defending DOMA now that Obama’s Department of Justice isn’t?
When we first filed the case (Gill et al v. Office of Personnel Management et al) in 2009, the lawyers defending the statute were from [Department of Justice]. For the past year and a half, particular members of Congress have stepped in through the Bipartisan Legal Advisory Group (BLAG), led by House Speaker Boehner, which hired a private law firm for the appeal before the First Circuit. We expect they will also appeal the First Circuit’s ruling to the Supreme Court.

What’s important about GLAD’s most recent victory in the First Circuit?
This case was really the first case filed against DOMA to get a successful ruling at the district level, and now the first to get an appellate ruling. We also expect it to be the first to reach the Supreme Court, as early as spring 2013. Strategically, this case is narrow and carefully thought-out, and it was crafted to win in the Supreme Court from the very start.

There’s no “right to marriage” component of the case, just a classic equal protection argument, so the case appeals to judges across the political spectrum.

So you think there’s a good chance the Supremes will uphold the First Circuit ruling and find DOMA’s marriage definition unconstitutional?
BLAG has 90 days to file an appeal, and the Supreme Court will likely decide in the fall whether to hear the case. When GLAD decided to file this case, our starting point was whether we could win before this court and these justices in particular. While we would never predict outright that we will win, we feel confident vis-a-vis the narrow case we are making for equal protection for gay and straight couples alike. We certainly think we’re in a good position.