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April 4, 2012

In Historic First, Appellate Court Will Decide Constitutionality of DOMA

Boston, MA—On Wednesday, April 4, seven married same-sex couples and three widowers went to the U.S. Court of Appeals for the First Circuit to hear appellate arguments in their challenge to Section 3 of the federal Defense of Marriage Act (DOMA), which disqualifies their marriages from marital protections and responsibilities ordinarily available to spouses under federal law. This was the first time an appellate court heard arguments concerning the constitutionality of DOMA.

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management, all Massachusetts residents, have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in tomorrow’s hearing. But after President Obama declared he would no longer defend the law against equal protection challenges, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives intervened and is now defending DOMA.

“DOMA’s precise point was to create an across the board exclusion of same-sex couples in the U.S. Code,” Mary L. Bonauto, GLAD’s Civil Rights Project Director, argued before the court. “The promise of equal protection is that likes are to be treated alike – but DOMA treats married same-sex couples differently from all other married persons, making gay people and our marriages unequal to all others.”

Bonauto argued on behalf of the plaintiffs before a three-member Court of Appeals panel comprised of Chief Judge Sandra Lynch, Judge Michael Boudin, and Judge Juan Torruella.

“At the age of 82, I’m grateful to have had this day in court, although I never thought I would have to fight the federal government for the Social Security protections that other widows and widowers can count on,” said plaintiff Herb Burtis. “Losing my spouse John after 60 years together – four of them as a legally married couple – was devastating, and learning that I was losing a safety net I relied on just added to the difficulty of living without John. Nobody should have to go through this during a time of grief.”

Burtis, a music teacher, lost his spouse John Ferris to Parkinson’s disease in 2008. He cared for Ferris at their Sandisfield home during the last years of Ferris’s life. Because of DOMA, the federal government refused to provide Burtis with Ferris’s Social Security benefits – as it does to other surviving spouses – making it harder for Burtis to pay for medications and health insurance.

The first strategic, multi-plaintiff challenge to DOMA, Gill was filed on March 3, 2009 on the grounds that Section 3 of the law violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, and federal employees and retirees. National Law Journal has called Gill the case with the greatest potential for national impact; it has also been called the “foremost” challenge to the law.

Because of DOMA, which Congress passed in 1996, the plaintiffs in GLAD’s lawsuit have been denied survivor benefits on a deceased spouse’s pension; denied health insurance coverage for a spouse (and surviving spouse) on a federal family plan; denied Social Security spousal, lump sum death, and widower benefits; denied the ability to file federal income taxes jointly as married; and have been taxed on employer-provided health insurance benefits.

The Gill legal team is led by Bonauto, GLAD Legal Director Gary Buseck, and staff attorneys Vickie Henry and Janson Wu. Co-operating counsel on the case include Foley Hoag LLP (Boston), Sullivan & Worcester LLP (Boston), Jenner & Block LLP (Washington, DC), and Kator, Parks & Weiser, PLLC (Washington, DC).

Information about the case, the plaintiffs, and the attorneys representing them can be found at Hi-resolution photos of the plaintiffs are available at

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Gay & Lesbian Advocates & Defenders is New England's leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.