WHY BLAG’S ARGUMENTS DEFENDING DOMA DON’T WORK

Updated April 30, 2012

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Why is DOMA Unconstitutional?

Section 3 of the “Defense of Marriage Act” violates the constitutional guarantee of equal protection by requiring the federal government to deny recognition of the existing legal marriages of same-sex couples. Equal protection promises that likes are to be treated alike, but DOMA treats married same-sex couples as unmarried for purposes of all 1,138 federal laws in which marital status is a factor.

Isn’t this just a policy spat that belongs to the Congress?

No. Telling people to go back to the very entity that discriminated against them rather than the courts could be an answer to every constitutional violation. In our system of checks and balances, the courts must say when laws are invalid.

DOMA is legally mandated discrimination against gay people and same-sex couples that is causing harm now. In addition to denying federal marital legal protections and obligations to married same-sex couples, DOMA is de jure discrimination that injures all gay and lesbian people by inviting disrespect by states and private parties.

Congress has been awakening to the harms caused by DOMA. The “Respect for Marriage Act,” pending in both the U.S. House and Senate, would repeal DOMA. It is essential to advocate for repeal and get the Congress on record while also recognizing that the prospects for repeal are distant.

But why can’t Congress define its own terms for federal law?

This is a red herring. Let’s assume that Congress can define “marriage” (even though only states can marry people and Congress has always deferred to state status determinations).The equal protection issue targets how “marriage” is defined. What legitimate and independent federal interest is rationally served by denying respect only to marriages of same-sex couples? Why is a spouse’s sexual orientation relevant to the federal government given that marital benefits and burdens are allocated based on marital status and nothing more? If Congress defined “person” to be only “female” or “Caucasian,” we would all recognize that Congress would need to justify such a restrictive definition.

Is this case about a constitutional “right to benefits?”

No. We say that as long as the federal government uses “marriage” and “spouse” as a basis for extending benefits or burdens, then the federal government needs a basis for discriminating between identically married people. If DOMA did not exist, lawfully married same-sex couples would be subject to the same benefits and burdens as other married persons. DOMA was designed to prevent that inclusion and create an exclusion.

Is DOMA really so unusual? Don’t immigration laws ignore state law, too?

DOMA is unique in denying the existence of a class of marriages for purposes of all federal laws. Immigration laws, like many other laws, accept the state’s marital status determination, and then apply additional eligibility criteria. If a person is validly married in a state, but cannot also show that the marriage was bona fide (i.e., not entered into for purposes of securing immigration benefits), then the person is denied immigration benefits. Many federal laws include such “plus” factors. Social security survivor benefits, for example, require a valid marriage plus a minimum age and length of marriage.

Where marriage was between a man and a woman only for so long, why couldn’t Congress just pass a law to preserve the assumptions it made in previous laws?

TTranslated, this means Congress wanted to maintain a tradition of different-sex marriage even though state marriage laws were changing. The existence of a tradition does not provide an independent and legitimate basis for adhering to that tradition.

Also as to “assumptions,” remember that for more than 200 years, Congress neutrally deferred to the states, meaning it deferred to a patchwork of laws that differed as to eligibility based on race, closeness of relations, public health issues, ceremonial requirements (common law marriage) and recognizing divorces. It is only now through DOMA that Congress claims an “interest” in the substantive definition of marriage used by states. Any such interest fails,as discussed below.

What is your basis for saying there is no legitimate federal interest for DOMA?

Rational basis review requires that a classification must bear a rational relationship to an independent and legitimate legislative end. The means (the classification) and ends (the goal) must be separate and distinct to ensure classifications are not drawn for the purpose of disadvantaging the group burdened by a law.

Many of the (invented) justifications for DOMA repeat what DOMA does but not a reason for doing it, or doing it only for married gay people. DOMA’s discrimination is re-labeled as uniformity or consistency, for example, or saving money or administrative ease, but only with respect to gay people’s marriages. Take uniformity: treating all gay people uniformly as unmarried doesn’t explain why only married gay people are, among all married people, treated as unmarried. Doing so also creates disuniformity within the class of married persons. Take the public fisc: Congress could save money by denying the validity of marriages of redheads, too. But rational review requires a principled basis for recognizing the marriages of some but not others. The same analysis applies to all of the claimed justifications.

Other justifications (pause while states debate, act cautiously, maintain the status quo) are only a means to an end but not an end in themselves. Sometimes the government can hold back while some other problem is addressed, but more people exercising their right to marry is neither a problem, nor anything new. DOMA is not cautious – it is both a complete ban and unlimited in time - and it upended the status quo at the federal level of deferring to state marital status determinations.

Lastly, the family law justifications about DOMA promoting “responsible procreation” and “optimal parenting” don’t rationally relate to DOMA at all. DOMA provides nothing to encourage heterosexuals to marry or have children in a marriage. It only harms same-sex couples who are already married and any children they have or may have in the future.

Members of the media can call Carisa Cunningham at (617) 426-1350, or email .

April 30, 2012

Pedersen et al. v. Office of Personnel Management et al.

On November 9, 2010, Gay & Lesbian Advocates & Defenders (GLAD) filed Pedersen et al. v. Office of Personnel Management et al. in Federal District Court in Connecticut, a new challenge to the federal Defense of Marriage Act and its mandated non-recognition of marriages of same-sex couples. This new case involves 5 couples and one widower from the states of CT, VT and NH.

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What is this lawsuit about?

This lawsuit challenges the federal government’s denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, federal laws for private pension plans, federal laws concerning state pension plans, as well as the same core issues addressed in GLAD’s earlier case of Gill v. OPM – federal income taxation, social security benefits, and employment benefits for federal employees and retirees.

All of the couples and widower in question were married in their home states, were qualified for a particular program, but were denied those protections solely because of DOMA. Only married couples of the same sex are singled out for federal non-recognition, depriving them of federally-created economic safety nets that couples count on when they marry and that help them take care of each other and their children.

DOMA creates a system of first and second class marriages, where most receive all federal legal protections, but same-sex couples are denied all protections across the board, even while taking on the responsibilities of marriage.

In GLAD’s earlier case Gill v. Office of Personnel Management, the Federal District Court in Boston ruled that DOMA Section 3 is unconstitutional as applied to married couples in Massachusetts. That case is now on appeal in the First Circuit Court of Appeals in Boston.

What is “DOMA”?

The “Defense of Marriage Act,” or DOMA, was passed by Congress in 1996 and signed into law by then-President Bill Clinton. The part at issue in our lawsuit, codified in law as 1 U.S.C. section 7, is a “definition” of “marriage” and “spouse” that applies to all federal laws and programs. Under this law, “the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

DOMA’s Section 3 operates to trump the state’s determination that a same-sex couple is married and says, to the contrary, that they are not married for purposes of all federal laws and programs. Accordingly, DOMA requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples (but not marriages of other couples) when dealing with federal legal protections in which marital status matters.

DOMA sweeps through the breadth of the United States Code. The General Accounting Office issued a report in 2004 concluding that 1,138 federal laws use marital status as a factor for specific federal protections, benefits and responsibilities. The Congressional Budget Office also reported in 2004 that if same-sex couples married nation-wide, the federal government would save $1 billion a year through at least 2014.

What is the legal basis of the lawsuit?

As in GLAD’s earlier Gill case, GLAD claims that DOMA violates the Equal Protection guarantee of the 5th Amendment of the United States Constitution. In each of the states of Connecticut, Vermont and New Hampshire, DOMA divides married couples into two groups, and then denies only married gay and lesbian couples the protections otherwise typically available to married couples.

For our nation’s entire history, the federal government has deferred to a state’s determination that a couple is married for purposes of federal protections and responsibilities. In 1996, Congress changed the rules when it looked like same-sex couples would marry, and for the first time ever created a federal definition of marriage for the purpose of excluding same-sex couples from those federal protections. GLAD believes there is no adequate justification for the federal government’s unprecedented non-recognition of the valid state marriages of same-sex couples.

Who are the plaintiffs in the case?

The plaintiffs are five couples and a widower from Connecticut, Vermont, and New Hampshire, who, solely because of DOMA Section 3, have been denied legal protections for which they are currently eligible and for which they have applied. They include federal and state employees and retirees, a widower, and taxpayers. Two of the plaintiff couples are the parents of children under the age of 18.

Doesn’t GLAD already have another lawsuit challenging DOMA in Massachusetts? Why another case?

Yes, GLAD is on appeal in Gill v. Office of Personnel Management, in which the Federal District Court ruled in July 2010 that DOMA is unconstitutional as applied to couples married in Massachusetts.

Since filing Gill in March 2009, marriage has become a reality for same-sex couples in several more states. While DOMA stands, more and more couples – including those in Connecticut, Vermont, and New Hampshire – are discovering the ways that they and their families are harmed. GLAD is committed to educating the public about the range of harms imposed by DOMA on married couples and using every available legal tool – including this new lawsuit – to end its mandated discrimination.

What are some of the 1138 federal laws and programs?

• Social Security spousal protections that enhance a family’s economic security while living in old age, or upon disability or death;
• Protections that enable one spouse to stay in the family home when the other spouse needs Medicaid for nursing home care;
• The ability to have a family policy of health insurance, and also to receive family health insurance from an employer without an added tax burden that applies to the cost of coverage for unmarried families;
• Joint tax filing and deductions for married couples that can save families money;
• Family medical leave from a job to care for a seriously ill spouse;
• Disability, dependency or death benefits for the spouses of veterans and public safety officers;
• Employment benefits for federal employees, including access to family health benefits, as well as retirement and death benefits for spouses;
• Estate/death protections that allow a spouse to leave assets to the other spouse – including the family home – without incurring a tax penalty; and
• The ability to sponsor a non-resident spouse for purposes of immigration.

What is the remedy you seek?

As in Gill, GLAD seeks a ruling that DOMA Section 3 is unconstitutional as applied to the plaintiffs in Federal Income Tax law, Social Security benefits, and federal employee and retiree benefits. This case also addresses DOMA’s invalidity in the context of the Family Medical Leave Act, state retiree health insurance benefits regulated by federal tax law, and survivor benefits in private pension plans under federal pension laws. GLAD seeks a declaration that Section 3 violates the U.S. Constitution in that it requires the federal government to disrespect a class of valid state marriages in violation of equal protection guarantees of the 5th Amendment.

President Obama has said he supports the repeal of DOMA. Don’t you think DOMA will be dealt with legislatively?

It should be. Despite President Obama’s support of DOMA repeal, and as much as we should press the Congress to repeal it, a repeal is unlikely to happen any time soon. Families are being harmed now, and we have the constitutional tools at hand to challenge DOMA in the courts.

Is GLAD trying through this lawsuit to “export” marriage equality to the other states?

No. This case has no bearing on any state’s marriage licensing or recognition laws – whether those laws allow same-sex couples to marry or respect out-of-state marriages or not. Rather, it is about the relationship between the federal government and a class of people who are married by their own states. The suit asks the federal government to go back to respecting state determinations of marital status. This is not a case seeking a federal constitutional right to marry that would override any state’s marriage laws or amendments.

Will this case reach the Supreme Court, and when?

This case deals with important questions of equal protection and the respective roles of the states and the federal government. Those questions have consistently been part of the Supreme Court’s case load in recent history, and, therefore, the Court will likely see Pedersen as important if, indeed, it is brought to them at some point in the future. That may not happen, but if it does, it will certainly not be decided by the Supreme Court any earlier than 2013.

If you win this case, will it apply to married same-sex couples in other states?

A favorable ruling for the plaintiffs will apply to people living in Connecticut, Vermont and New Hampshire. If we win on appeal, the case will benefit more people in states that license or respect marriages of same-sex couples.

Who are the attorneys in the case?

GLAD’s legal team in Pedersen is led by Mary L. Bonauto and GLAD Legal Director Gary Buseck, with Staff Attorney Janson Wu and legal fellows Liz Monnin-Browder and Ashley Dunn. Co-operating counsel on the case include Jenner & Block LLP (Washington, DC), and Horton, Shields & Knox (Hartford), and Sullivan & Worcester LLP (Boston).

Members of the media can call Carisa Cunningham at (617) 426-1350, or email .

November 9, 2010

• Relationship Recognition Map from the National Gay and Lesbian Task Force

U.S. Statewide DOMA Statutes and Constitutional Amendments

• Statewide Marriage Prohibitions Map from the Human Rights Campaign

Federal Government Reports on DOMA

• Summary of the General Accounting Office Reports on Section 3 of the Federal Defense of Marriage Act
• Federal Laws In Which Marital Status is a Factor:
  Government Accounting Office Report – January 31, 1997
• Federal Laws In Which Marital Status is a Factor:
  Government Accounting Office Report – Update, January 23, 2004
• The Potential Budgetary Impact of Recognizing Same Sex Marriages:
  Congressional Budget Office Report – June 21, 2004

Congressional Resource Service Reports

• Same Sex Marriage Legal Issues: February 2004
• Same Sex Marriage Legal Issues: June 2004
• Same Sex Marriage Legal Issues: July 2004
• Same Sex Marriage Legal Issues: September 2004
• Same Sex Marriage Legal Issues: November 2004
• Same Sex Marriage Legal Issues: June 2005
• The Effect of State-legalized Same Sex Marriage on Social Security Benefits and Pensions: July 2004
• The Effect of State-legalized Same Sex Marriage on Social Security Benefits and Pensions: Update, January 2008

Other Cases Pertaining to Section 3 of the Federal Defense of Marriage Act

• Overview of Cases Involving Section 3 of DOMA
• Smelt v County of Orange: Ninth Circuit Court Opinion
• Smelt v County of Orange: District Court Order of Dismissal
• In re Lee Kandu and Ann C. Kandu, Debtors: Bankruptcy Court Memorandum Decision
• Wilson v Ake: District Court Ruling

Opposition Materials

• iMAPP Policy Brief: Analysis of the 1997 Government Accounting Office Report: May 2004

Gill, et al. v. Office of Personnel Management, et al.

On March 3, 2009, Gay & Lesbian Advocates & Defenders (GLAD) filed Gill, et al. v. Office of Personnel Management, et al. in Federal District Court in Boston, to challenge Section 3 of the Defense of Marriage Act (DOMA.)

Download this FAQ as a PDF

Download the FAQ on the July, 2010 U.S. District Court ruling

What is this lawsuit about?

This lawsuit challenges the federal government's denial of marriage-related protections, benefits and responsibilities to legally married same-sex couples - federal protections that are available to all other legally married couples.

The law in question, DOMA Section 3, deprives families of federally-created economic safety nets that couples count on when they marry and that help them take care of each other, to the detriment of those couples and their children and other dependents. It creates a system of first and second class marriages, where the former receive all federal legal protections, and the latter are denied them, even while taking on the responsibilities of marriage

What is "DOMA Section 3"?

The "Defense of Marriage Act" or DOMA, was passed by Congress in 1996 and signed into law by then-President Bill Clinton. It is codified at 1 U.S.C. section 7. This lawsuit challenges only Section 3 of the law, which excludes legally married same-sex couples from any federal law or program in which marriage is a factor. The General Accounting Office issued a report in 2004 concluding that 1,138 federal laws distinguish based on marital status. The Congressional Budget Office also reported in 2004 that if same-sex couples married nation-wide, the federal government would save $1 billion a year through at least 2014.

What is the legal basis of the lawsuit?

GLAD believes that DOMA Section 3 violates the federal government's promise of equal protection of the laws contained in the 5th Amendment of the United States Constitution. It singles out just one class of marriages for disrespect and then denies those same-sex couples every single legal protection and responsibility otherwise available to married couples.

DOMA represents an extraordinary intrusion by the federal government into marriage law, an area of law that has always belonged to the states. We believe there is no adequate justification for the federal government's unprecedented non-recognition of valid state marriages.

Who are the plaintiffs in the case?

The plaintiffs are eight couples and three individuals who, solely because of DOMA Section 3, have been denied legal protections for which they are currently eligible and for which they have applied. They include federal employees, federal retirees, the surviving spouse of a U.S. Congressman, taxpayers, Social Security recipients, and U.S. passport holders. Several of the plaintiffs are the parents of children under the age of 18.

How exactly does DOMA Section 3 harm children?

Among other things, DOMA harms families financially. It forces most to pay more in federal income taxes, and denies many benefits like health insurance and pensions. Parents report being unable to save money for college or retirement, having to work more hours, and choose inferior health plans. When spouses are unable to take Family Medical Leave to care for each other during a serious illness, the stress affects the whole family. When military spouses are unable to use education benefits, they cannot advance professionally and help their families. And all parents object to the message their children receive that their families are second-class.

What are some of the 1138 federal laws and programs?

• Social Security spousal protections that enhance a family's economic security while living in old age, or upon disability or death;
• Protections that enable one spouse to stay in the family home when the other spouse needs Medicaid for nursing home care;
• The ability to have a family policy of health insurance, and also to receive family health insurance from an employer without an added tax burden that applies to the cost of coverage for unmarried families;
• Joint tax filing and deductions for married couples that can save families money;
• Family medical leave from a job to care for a seriously ill spouse;
• Disability, dependency or death benefits for the spouses of veterans and public safety officers;
• Employment benefits for federal employees, including access to family health benefits, as well as retirement and death benefits for spouses;
• Estate/death protections that allow a spouse to leave assets to the other spouse — including the family home — without incurring a tax penalty; and
• The ability to sponsor a non-resident spouse for purposes of immigration.

What exactly does DOMA Section 3 do?

Section 3 of DOMA trumps a state's determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs. Under this law, "the word 'marriage' means only the legal union of a man and a woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." It requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but not marriages of other couples.

What is the remedy you seek?

GLAD seeks a ruling that DOMA Section 3 is unconstitutional as applied to the plaintiffs in Federal Income Tax, Social Security, federal employment benefits, and the issuance of passports. GLAD seeks a declaration that by passing DOMA Section 3 Congress violated the U.S. Constitution by exceeding its authority in redefining elements of eligibility under the law governing benefits in the particular federal programs, in violation of equal protection guarantees of the 5th Amendment.

President Obama has said he supports the repeal of DOMA. Don't you think DOMA will be dealt with legislatively?

Despite President Obama's support of DOMA repeal, it is unlikely this will happen in the next four years. Most political experts agree that achieving the repeal of DOMA is likely to be a long-term proposition. The new President and Congress have many priorities; the LGBT community also has many priorities that probably rank ahead of DOMA repeal, including the passage of the Employment Non-Discrimination Act, a hate crimes bill, the Uniting American Families Act, and repeal of "Don't Ask, Don't Tell."

Is GLAD trying through this lawsuit to "export" marriage equality from Massachusetts to the other states?

No. This case has no bearing on any state's marriage licensing or recognition laws - whether those laws allow same-sex couples to marry or respect out-of-state marriages or not. Rather, it is about the relationship between the federal government and a class of people who are married by their state (Massachusetts). The suit asks the federal government to go back to respecting state determinations of marital status. This is not a case seeking a federal constitutional right to marry that would override any state's marriage laws or amendments.

Will this case reach the Supreme Court, and when?

This case deals with important questions of equal protection and the role of the states versus the federal government. Those questions have consistently been part of the Supreme Court's case load in recent history, and, therefore, the Court will likely see this as an important case if, indeed, it is brought to them at some point in the future. That may not happen, but if it does, it will certainly not be decided by the Supreme Court any earlier than 2013.

If you win this case, will it apply to married same-sex couples in other states, like Connecticut and New York?

Yes. People living in states that license or respect marriage should no longer be denied the federal benefits litigated in GLAD's case.

Who are the attorneys in the case?

The plaintiffs are represented by Gay & Lesbian Advocates & Defenders, including Civil Rights Project Director Mary L. Bonauto, Legal Director Gary D. Buseck, and Staff Attorney 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).

Members of the media can call Carisa Cunningham at (617) 426-1350, or email .

March 3, 2009

GLAD CHALLENGES DOMA § 3

On March 3, 2009, GLAD filed a lawsuit in Federal District Court in Boston on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. Two of these couples will be filing suit after receiving rejections of their amended tax returns from the IRS. Each plaintiff is currently eligible for a particular program or benefit, applied for it, and was denied that legal protection because of Section 3 of the Defense of Marriage Act (“DOMA”). You can view the Complaint here.

DOMA was enacted in 1996 before any state began issuing marriage licenses to qualified same-sex couples. It has two substantive parts. Section 2 authorizes states to establish policies with respect to marriages of same-sex couples. Section 3 deals with federal discrimination and is the only portion of DOMA challenged in GLAD’s lawsuit. (Section 1 merely names the act.)

Section 3 of DOMA applies to the federal government only. It overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs, even though the federal government has always deferred to state determinations of marital status. Under this law, “the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” This law requires all federal departments and agencies to disrespect the valid state-licensed marriages of same-sex couples but not other married couples. As a result, only married same-sex couples are denied all rights, protections and responsibilities associated with marriage at the federal level.

Download this Overview as a PDF

What is this lawsuit about?

This lawsuit challenges the federal government's denial of marriage-related protections and benefits to legally married Massachusetts same-sex couples, protections and benefits that are available to all other legally married couples.

The law in question, the "Defense of Marriage Act" deprives families of federally-created economic safety nets, to the detriment of those couples and their children or other dependents. It creates a system of first and second class marriages, where the former receive all federal legal protections, and the latter are denied them, even while taking on the responsibilities of legal marriage.

What is DOMA § 3 and Why Is It a Problem?

When people marry, as over 10,000 same-sex couples have now done in Massachusetts since 2004, and as couples have been doing in Connecticut since November 2008, they take on legal responsibilities for one another and their families.

The federal government does not license marriages – only states do – but many federal programs take state-granted marital status into account in determining eligibility and the extent of coverage. Due to this unprecedented law, the federal government denies rights, protections and responsibilities to married couples of the same sex in every federal program that takes account of marital status. There are at least 1,138 federal laws in which marital status is a factor according to government studies conducted in 1997 and 2004. In another 2004 report, the Congressional Budget Office estimated the federal government would save $1 billion each year through 2014 if same-sex couples could marry nation-wide. You can see these reports and a GLAD overview of the GAO Reports here.

The federal programs to which same-sex married couples are denied access represent some of the critical legal safety nets that couples count on when they marry, as they plan their lives and futures together, as they raise children and deal with hard times, and for which they contribute their American tax dollars. These include:

• Social Security spousal protections that ground a family’s economic security while living in old age, and upon disability and death;
• protections for one spouse’s essential monetary resources and the ability to stay in the family home when the other spouse needs Medicaid for nursing home care;
• the ability to be included in a family policy of health insurance, and if receiving that family health insurance, to be free of income tax on the value of that insurance;
• the ability to use the “Married Filing Jointly” status for federal income tax purposes that can save families money;
• family medical leave from a job to care for a seriously ill spouse;
• disability, dependency or death benefits for the spouses of veterans and public safety officers;
• employment benefits for federal employees, including access to family health insurance benefits, as well as retirement and death benefits for surviving spouses;
• estate/death protections that allow a spouse to leave assets to the other spouse – including the family home – without incurring any taxes; and
• the ability of a citizen to obtain a visa for a non-citizen spouse and sponsor that spouse for purposes of citizenship.

There are two sides of the marital contract – with rights also come responsibilities – including under federal law. For example:

• Eligibility for federal student financial aid requires, for married students, an assessment of the income of both the student and his/her spouse because the married couple is rightly consolidated as a legal economic unit. Ignoring the marriage of a same-sex couple can unfairly allow a married student greater aid than would be available if his/her marriage were recognized by the federal government. Married same-sex couples would welcome having this responsibility for the recognition of their marriage.
• Public officials with hiring or supervisory authority are barred from appointing, employing, promoting or advancing their own relatives to positions within governmental agencies, whether related by blood or marriage.

Overall, DOMA Section 3 deprives tax-paying American families of the federally-created economic safety nets for married families, to the detriment of those couples and their children or other dependents. In addition, it creates a system of first and second class marriages, where some married persons receive all federal legal protections, but gay and lesbian married couples are denied them across the board, even while taking on the commitment and duties of their legal marriage vow.

People joined in civil union or in a domestic partnership are also denied these federal rights and protections, but for the reason that they are not married. The federal programs at issue were created for, and are currently available to, married families, so it is only married same-sex couples who are eligible for, but are denied these rights and protections because of DOMA Section 3.

Why Is DOMA Legally Invalid?

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.

Those favoring DOMA Section 3 argue that the federal government should be able to define terms for its own programs. But DOMA Section 3 is so broad that it defies any legitimate concern with implementation of any particular federal law. It also ignores that the federal government has no business making national marriage laws. That is why for over 200 years the federal government has relied on states to tell them whether a person is married or not. When a state makes a determination of a person’s marital status, the Congress cannot undo that by simply claiming, as DOMA Section 3 does, that the person is unmarried. The Congress stepped out of its role and ignored its precedent and practice of deferring to states for one reason: to disrespect the marriages of same-sex couples.

What Does GLAD’s Case Address?

GLAD’s is filing suit on behalf of individuals and couples who, because of DOMA Section 3, have been denied legal protections for which they are currently eligible and for which they have applied.

Federal Employees, Federal Retirees, Surviving Spouse of Federal Employee

Several of the plaintiffs seek spousal protections based on their employment with, or their spouse’s employment with, the United States government. One plaintiff, a 21+ year employee of the United States Post Office, already receives “Self and Family” health insurance coverage for herself and the couple’s two children through her job. Yet, she is unable to add her spouse to that plan, or to her vision plan, or to use her flexible spending account for her spouse’s medical expenses, as other married postal workers are entitled to. Another plaintiff, a retiree from the Social Security Administration, has been denied health insurance coverage for his spouse although other retired employees may add their spouses to such coverage. Another plaintiff is the surviving spouse of a retired Member of Congress. He has been denied both health insurance and the survivor annuity (pension) normally available to surviving spouses. In each instance, the government has cited DOMA Section 3 in denying spousal benefits to the postal employee, to the retiree, and to the surviving spouse.

Taxpayers

Several of the plaintiffs have been denied spousal protections available under the Internal Revenue Code and thus pay more in federal income taxes than other similarly situated married couples in Massachusetts. In filing their federal income tax returns, each of these plaintiffs seeks to file as “married filing jointly” rather than as “single” or “head of household.” One plaintiff also seeks to establish a “spousal IRA” for her spouse who cares for their children at home, as other working married people may establish such retirement accounts to provide for the well-being of their spouse. Another plaintiff seeks relief from having to pay federal income taxes on the value of the health insurance her employer (the Commonwealth of Massachusetts) provides for her spouse, just as other spouses are not required to pay income tax on such employer-provided health benefits. Each plaintiff filed an amended return with the IRS, asking to be recategorized as a married taxpayer, and requesting a refund. Each amended tax return and accompanying request for refund has been rejected by the Internal Revenue Service (“IRS”) based on DOMA Section 3.

Social Security Protections

Several of the plaintiffs seek spousal protections afforded by the Social Security program. Three widowers, already distressed by the death of their spouses, seek the lump-sum death benefit normally available upon the death of a spouse to help pay for funeral costs. One of the widowers also seeks the survivor benefit, namely to substitute his deceased spouse’s higher benefit for his own lower benefit, as is standard for spouses. Another retiree seeks to increase her monthly payment to the standard one-half of her higher-earning spouse’s payment, as other spouses are entitled to do. Each of these plaintiffs has been denied Social Security benefits based on DOMA Section 3.

Passports

Another plaintiff seeks a passport to be issued in his correct name, which he lawfully changed as a consequence of his marriage in 2004. Invoking DOMA, the State Department has denied a request for a passport in his married name because he changed his name through his marriage, even though it accepts name changes effectuated through marriage for other married persons.

What Legal Remedy Does GLAD’s Case Seek?

GLAD seeks a ruling that DOMA Section 3 is unconstitutional as a matter of equal protection as applied to the plaintiffs in Federal Income Tax, Social Security, federal employment benefits, and the issuance of passports. The case seeks a determination that DOMA Section 3, codified in law as 1 U.S.C. section 7, violates the United States Constitution and an injunction to stop the Office of Personnel Management, IRS, Social Security Administration and the State Department from applying the law as declared. It is GLAD’s hope that a favorable ruling in these areas can be applied to other areas of federal law, and/or that such a ruling would encourage Congress to consider repealing the law.

Why Didn’t GLAD Take On Other Benefits Like Family Medical Leave or Immediate Relative Visas for Non-Citizen Spouses?

The battle to end federal discrimination against married same-sex couples has to begin somewhere, and for reasons discussed below (see “What This case Does and Does Not Do”), GLAD believes that the battle must begin with programs where it is painfully obvious that Congress could not have been thinking of the true purposes of the programs when it blithely excluded gay and lesbian married couples. These programs show clearly that Congress was quite simply showing disdain for and disapproval of gay people.

GLAD recognizes that, as a consequence, this lawsuit is not highlighting some other harsh and heart-rending effects of Congress’ callous behavior in enacting DOMA Section 3 – such as the denial of family medical leave to care for a seriously ill spouse or the right of a citizen to sponsor a non-citizen spouse for an immediate relative spousal visa. These wrongs must end, and GLAD believes that a victory in the current lawsuit will hasten the day when every aspect of DOMA Section 3 will be history. However, some claims against the federal government are simply more difficult to prepare for litigation or to prevail upon.

Particularly with respect to the hardship caused by the current unjust immigration laws, there are vibrant efforts underway in Congress that have gained traction and could pass sooner than GLAD’s lawsuit could see the demise of DOMA Section 3 in the program areas being challenged. The Uniting American Families Act has more sponsors and supporters than ever, and it behooves all of us to do all we can to see that Congress passes such legislation as quickly as possible.

Why A Court Case? Why Not the Congress?

While President Obama supports the repeal of DOMA, given the current wars, economic conditions, and a host of other issues, including other LGBT issues, many political experts believe that repeal of DOMA Section 3 is unlikely to happen in the next four years. Repealing DOMA Section 3 will take time and investment in public education and lobbying, something this lawsuit will prompt regardless of its ultimate outcome. As yet, Congress does not grasp that Section 3 mandates denial of all federal legal protections to married couples of the same sex. After all, Congress passed the law eight years before there were any married same-sex couples to actually be harmed by their actions. Likewise, the public in most states has not had to grapple with the real-life consequences of DOMA Section 3. Moreover, the public also needs to understand that ending federal discrimination will not change the marriage laws in any state. It is all of our jobs to explain the harms that discrimination causes to married same-sex couples and their children and create a climate in which repeal is possible.

There are many priorities for the LGBT community that likely rank ahead of a DOMA Section 3 repeal, including the passage of the Employment Non-Discrimination Act (ENDA), a hate crimes bill, the Uniting American Families Act (UAFA), and repeal of Don’t Ask, Don’t Tell (DADT). Congressional Representative Barney Frank has confirmed that these are the top legislative priorities for the LGBT community. Representative Frank was a forceful critic of DOMA when he served on the House Judiciary Committee in 1996, and has continued to lead on this issue by sponsoring a number of bills to repeal DOMA Section 3 in the Congress. Representative Frank readily acknowledges that repeal of DOMA Section 3 remains a greater challenge than these other bills.

Likewise, leaders of the two national LGBT advocacy organizations, Human Rights Campaign and The Task Force, have stated that the repeal of DOMA Section 3 presents a tougher challenge that is best addressed only after hate crimes and ENDA pass first.

Of course it is important that we apply pressure to all branches of government simultaneously – and that includes Congress – to correct the injustices that DOMA, and specifically Section 3, imposes on same-sex married couples and their families and children. At the same time, the federal courts have an independent obligation to uphold the constitutional promises of equal treatment and to say when a law draws the wrong lines, as GLAD believes DOMA Section 3 does. Enforcing the equal protection guarantee means ensuring fairness for all Americans – and that includes the federal government treating all married couples the same regardless of sexual orientation. That is what this lawsuit aims to demonstrate to the courts, Congress and the general public – that the denial of valuable federal rights and benefits to validly married same-sex couples and their children is just wrong and unfair.

What This Case Does and Does Not Do.

This case only addresses DOMA Section 3. It seeks to end discrimination by the federal government against people who are validly married and ensure they are not denied rights, protections and responsibilities afforded to other married persons.

If GLAD’s lawsuit is successful, then DOMA Section 3 could not be applied to federal tax laws, Social Security laws, benefits programs for federal employees, retirees and their surviving spouses, and the regulations and practices governing issuance of passports in states where people can marry. It would establish an important principle that could be used in other cases and in advocating repeal.

If a non-resident couple were married in Massachusetts or Connecticut and their home state did not recognize their marriage, then, as a general matter, a favorable result in this case will not allow them to seek federal legal protections.

By design, this lawsuit is limited to particular programs and does not seek to invalidate DOMA Section 3 in its entirety. The U.S. Supreme Court has made clear that it strongly disfavors attempts to strike a federal law in its entirety and prefers to evaluate cases with concrete examples of how a federal law as applied violates constitutional rights.

This case is only about the relationship between the federal government and a class of people who are married by their states. While the federal government must follow state determinations of marital status, states remain free to establish their own marriage policies and recognition laws. This lawsuit has no impact on any state’s marriage licensing or recognition laws – whether those laws allow same-sex couples to marry or not.

This is not a case seeking a federal constitutional right to marry that would override any state’s marriage law or amendment.

This case does not address Section 2 of DOMA and its “permission slip” to states to establish public policies regarding marriages of same-sex couples.

In short, if DOMA Section 3 is declared unconstitutional in GLAD’s lawsuit, no state would, as a result, be required to issue marriage licenses to same-sex couples and no state would be required to recognize and respect a Massachusetts marriage of a same-sex couple.

What can I do to help defeat DOMA?

There are things you can do to help, including supporting organizations like GLAD that are fighting to end this federal discrimination.

• You can lobby your Member of Congress and Senators for enactment of ENDA, hate crimes protection, UAFA, repeal of DADT, and the repeal of DOMA.
• If you live in a state that does not allow same-sex couples to marry, you can support your local marriage equality organization. The availability of federal rights and protections to same-sex couples should be a powerful incentive for states to reconsider restrictive amendment and laws. As the number of states that offer same-sex couples the protection of marriage and the number of married same-sex couples increase, so will the pressure to end the federal discrimination against same-sex married couples.

GLAD believes that there are sound and unsound legal strategies to challenge this federal discrimination, and that putting together a winning case will take substantial resources and expertise. GLAD strongly encourages people not to file an individual lawsuit challenging DOMA Section 3 at this time, since a loss would make it more difficult to mount a successful challenge, and to contact GLAD, Lambda Legal, the ACLU Lesbian and Gay Rights Project, and the National Center for Lesbian Rights about any legal concerns. Any lawsuit requires doing the right work at the right time.

GLAD is seeking to collect as much information as possible about the federal discrimination same-sex married couples face. If your marriage is not respected, we encourage you to call GLAD’s Legal InfoLine at 800-455-GLAD (4523) to discuss your options. We encourage all married same-sex couples to fill out our Married Couples Survey at http://www.glad.org/doma/survey.