Frequently Asked Questions
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), which prohibits the federal government from recognizing the legal marriages of same-sex couples.
On July 8, 2010, Judge Joseph L. Tauro ruled in Gill that DOMA Section 3 is unconstitutional. The decision was unanimously upheld on appeal in the First Circuit Court of Appeals on May 31, 2012. Following that decision, the Bipartisan Legal Advisory Group (BLAG), a standing body comprised of the leadership of the U.S. House of Representatives and the U.S. Department of Justice each asked the U.S. Supreme Court to review the case.
GLAD is representing seven married same-sex couples and three widowers from Massachusetts.
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.
Our plaintiffs married in their home state of Massachusetts and 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.
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 a 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 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 legal basis of the lawsuit?
GLAD claims that DOMA violates the Equal Protection guarantee of the 5th Amendment of the United States Constitution. In Massachusetts, 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 seven 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, married couples who can’t file their federal taxes jointly, and Social Security recipients. 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 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, and federal employment benefits. 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?
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.
If you win at the Supreme Court, will it apply to married same-sex couples in other states?
Yes. Should the Supreme Court affirm that DOMA Section 3 is unconstitutional, the federal government would return to its neutral role of allowing the states to determine who is married for the purposes of federal protections and responsibilities. This means the federal government would recognize the marriages of same-sex couples living in states where same-sex couples are allowed to legally marry: currently Connecticut, Iowa, New Hampshire, New York, Maine, Maryland, Massachusetts, Vermont, Washington State, and the District of Columbia.
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, Senior Staff Attorney Vickie Henry 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).
Is this case GLAD’s only challenge to DOMA Section 3?
No. In GLAD’s second DOMA case, Pedersen v. Office of Personnel Management, the Federal District Court of Connecticut ruled on July 31, 2012 that DOMA Section 3 is unconstitutional as applied to married couples in Connecticut, New Hampshire and Vermont.
March 3, 2009