You just might get your wish:
* LAW JOURNAL -- Wall Street Journal
* MAY 21, 2009
The Battle Over Benefits for Same-Sex Spouses
Lawsuit Seeks Same Rights Straight Couples Possess; Opponents Fear Campaign to Advance Gay Marriage Nationally
By PHILIP SHISHKIN
BOSTON -- In October 2006, Gerry Studds, the first openly gay U.S. congressman, took his dog out for a morning walk and collapsed with a blood clot in his lung. He died a few days later.
Ever since, his widower, Dean Hara, married legally to Mr. Studds in Massachusetts, has been trying in vain to collect survivor benefits from Mr. Studds's federal pension and health insurance -- tens of thousands of dollars he says he would be getting if he were straight.
Now, in a lawsuit, Mr. Hara, two other gay widowers and seven gay couples also wed in Massachusetts are challenging the law that keeps them from getting federal marital benefits.
The 1996 Defense of Marriage Act, signed into law by former President Bill Clinton, defines marriage as a union of a man and a woman. That means the government must ignore same-sex marriages even if a state chooses to recognize them, as Massachusetts and four other states have done. A recipient of many federal benefits must be either an opposite-sex spouse or, in some cases, a child.
Although DOMA has been unsuccessfully challenged before, the new lawsuit is different because of the number of plaintiffs, its sharp focus on the marital-benefits issue and because the plaintiffs all are legally married or survivors of legal marriages.
A victory for them would increase the financial benefits of gay marriage, which could help spread the practice. Though legal experts say courts would be reluctant to invalidate laws set by Congress, supporters hope a victory will put pressure on Congress to repeal DOMA, a rescission that President Barack Obama says he favors even though he opposes gay marriage.
A victory for the government would strengthen the hand of gay-marriage opponents, who view the law as the last line of defense against a practice that they consider immoral and damaging to the institution of marriage. Some conservatives fear that this lawsuit is part of a Trojan-horse campaign to make gay marriage a reality nationwide over the will of voters. They see the lawsuit, filed in U.S. District Court here in March, as an important one. "It's very significant because the ramifications are extraordinary," says Brian Raum, an attorney at the conservative Alliance Defense Fund.
The lawsuit also comes after many companies have been extending health-care and other benefits to same-sex couples and domestic partners. Human Rights Campaign, a gay-advocacy group, says that over half of Fortune 500 companies provide health benefits to the gay partners of employees.
Plaintiffs say DOMA means they pay higher taxes because they can't file a joint return, and they can't collect spousal Social Security benefits, among other restrictions. Their lawsuit argues that the government discriminates against their marriages and infringes on their constitutional right to equal protection under the Fifth Amendment.
The suit also advances a federalist argument, saying that marriage is a matter for states to define, not for Washington. It doesn't attempt to make gay marriage legal nationwide or force the practice on 42 states that ban it.
The Department of Justice declined to comment on the litigation, and hasn't yet responded in court. Lawyers on both sides say President Obama's position on DOMA doesn't mean his Justice Department won't vigorously defend the lawsuit.
"It's far from a slam dunk, but it's a powerful and plausible case," according to Laurence Tribe, a Harvard Law School professor who says he's sympathetic to the plaintiffs but isn't involved in the lawsuit. "It's a surgical attack on DOMA rather than trying to hit it with a bludgeon."
Lynn Wardle, a professor at Brigham Young University law school who specializes in family law, says the notion that the federal government must defer to the states' definition of marriage is wrong. Mr. Wardle, who is opposed to gay marriage, says that in cases that predate the gay-marriage debate, the government has overruled state definitions of marriage when it alleged couples created sham marriages to gain citizenship for one of the parties, or for tax benefits. Preventing activist judges from redefining marriage is precisely why DOMA was enacted, Mr. Wardle says.
Harvard's Mr. Tribe says that while the U.S. government isn't constitutionally obligated to follow the states' definition of marriage, it has historically done so, and would need to justify why it departed from this practice in the case of gay marriage.
In a 2005 case, in which a lesbian couple in Florida challenged DOMA, the government argued that straight marriage fosters procreation, encouraging the "stable generational continuity of the United States." In that case, a federal judge in Tampa upheld DOMA and said there was no precedent to "acknowledge or establish a constitutional right to enter into a same-sex marriage."
While gay-marriage advocates don't expect Congress to take up DOMA anytime soon, they acknowledge the lawsuit is in part designed to nudge Congress toward action. "We are hoping this will prompt Congress to take a closer look at these issues," says Mary Bonauto, civil-rights project director at the Boston-based Gay & Lesbian Advocates & Defenders, which represents the plaintiffs.
The group filed the 2004 case that made Massachusetts the first state in the country to allow same-sex couples to wed. Ms. Bonauto also won a similar case in Connecticut last year. Since then, three more states -- Iowa, Vermont and Maine -- authorized gay marriage.
Plaintiffs say the constitutional arguments are overshadowed by the nitty-gritty concerns of daily life. "I work with people every day, we are doing the same job, but they all are making more money just because they are in a straight marriage," says Mary Bowe-Shulman, an attorney at a Massachusetts state court.
When Ms. Bowe-Shulman added her spouse, Dorene, a cancer survivor, to her health plan, the government started taxing her on the value of Dorene's insurance, she says -- a tax that doesn't apply to straight married couples. Combined with other federal taxes assessed because they are single in Washington's eyes, the Bowe-Shulmans, who have two daughters, say they paid $3,332 in extra taxes in 2006 alone.
Congressman Studds and Mr. Hara got engaged in 1991. Mr. Hara, who is 51 and works as a financial adviser, remembers watching the congressional debate on DOMA from the visitors' gallery. "I don't think we ever thought we'd be married," he says. The pair were among the earliest to wed after the 2004 Massachusetts court ruling.
By then, Mr. Studds had retired from Congress and was receiving a pension and federal health coverage. In June of last year, an administrative judge put an end to Mr. Hara's attempts to get survivor benefits, saying "a same-sex marriage in any jurisdiction cannot be recognized for benefit entitlement purposes," according to the lawsuit.
Mr. Wardle acknowledges that the "equality argument" advanced by plaintiffs "seems to have some legs." One solution to the benefits debate, he suggests, would be to redefine the rules of awarding the benefits so that committed gay couples are entitled to them, while still keeping a federal definition of traditional marriage intact.
Write to Philip Shishkin at [email protected]