Gay rights groups have launched new and multi-plaintiff legal challenges to the federal Defense of Marriage Act in a race to pressure federal courts to change the federal definition of marriage.
The American Civil Liberties Union and Gay and Lesbian Advocates and Defenders both filed lawsuits Tuesday on behalf of same-sex couples trying to receive federal benefits from their partners.
In GLAD’s case, the advocate group filed a lawsuit on behalf of five same-sex couples and widowed partner across three states – Connecticut, Vermont and New Hampshire.
“DOMA must fall,” said GLAD Civil Rights Project Director Mary Bonauto.
She said gay rights groups will put continued pressure on DOMA until same-sex couples receive the same benefits as opposite sex couples.
“We have to keep the pressure on and get DOMA off the books before it does any more harm,” she stated.
Chris Gacek, a senior fellow of the Family Research Council, responded to the lawsuits, noting that “there’s been a change in strategy.”
“They’re going try to file [a lawsuit] for every supposed benefit that has been denied,” Gacek said.
According to Bonauto, the GLAD lawsuit shows how DOMA hurts a wide range of people. The couples named in the suit have been denied leave requests, survivor benefits, shared insurance benefits and joint tax filing benefits. Their stories are recorded on a video on GLAD’s website and features couples of different ages, races and genders in family pictures.
ACLU is representing a widowed partner, Edith "Edie" Windsor, who is suing for a refund of the estate tax Windsor she was forced to pay for her deceased partner of 44 years.
Gacek views the lawsuits as “sort of a public relations campaign.”
ADF Legal Council Dale Schowengerdt explained that GLAD put multiple plaintiffs on the lawsuit because “their legal arguments are a little bit thin and they focus a lot on the stories of these couples and basically make an emotional appeal.”
Schowengerdt also said gay rights groups are trying to build a compelling case for the U.S. Supreme Court.
And with Justice Elena Kagan on the high court, gay rights groups believe she can be the swing vote, Gacek pointed out.
Gay rights advocates have what they believe is a favorable environment in the Supreme Court, said Gacek. Before, he said, “They didn’t want to challenge DOMA or Prop 8 until they had another vote on the Supreme Court and [could] be certain of winning.”
These two cases combined with the two still pending in the U.S. Circuit Court of Appeals and the Log Cabin’s Supreme Court petition is evidence of what Schowengerdt calls “a race to the Supreme Court.”
DOMA defines marriage as “a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife” for the benefit of federal laws for items such as federal employee benefits. The act also re-establishes states’ right to define marriage in their own terms without having to defer to other state rulings.
ADF has been working with the Department of Justice to ensure that DOMA is upheld since it was first challenged in July.
In The Commonwealth of Massachusetts v. the U.S. Department of Health and Human Services, Judge Joseph L. Tauro of Massachusetts issued a ruling denying a USDHHS motion to dismiss the state’s lawsuit, proclaiming that DOMA violates the 5th and 10th Amendments. In companion case Gill v. Office of Personnel Management, a similar ruling was given.
For now, a stay has been issued preventing DOMA from being overturned before both rulings are appealed. Schowengerdt said the Department of Justice will begin filling briefs for the first of the appeals on Dec. 13.