Tuesday, March 3, 2009

"Marry Me a Little"

GLAD sues challenging DOMA

Gay and Lesbian Advocates and Defenders (GLAD) has filed a lawsuit in federal district court challenging the interpretation and constitutionality of the federal Defense of Marriage Act (DOMA) as applied to the various plaintiffs.

The complaint asserts that Section 3 of DOMA, which refuses to recognize any marriage of a same-sex couple even if lawfully entered in some U.S. state or foreign country, violates the equal protection obligations the U.S. Constitution places on the federal government. The suit is not challenging DOMA or even Section 3 on its face, but only as applied to the plaintiffs to deny them equal benefits under "laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports." In some cases, the suit alleges, the laws have been interpreted in ways that DOMA does not requirel; where DOMA does require the discrimination at issue, it is unconstitutional, according to the lawsuit.

The suit does not yet specify whether or not the plaintiffs are arguing that the constitutionality of DOMA must be assessed under what the court's term "strict scrutiny," the least deferential form of judicial review. It could be read as arguing that these applications of DOMA do not even have a "rational basis," the most deferential form of review requiring only that challenged laws have a "rational relationship" to "a legitimate governmental interest." In particular, the various counts of the complaint conclude that DOMA "creates a classification that treats similarly-situated individuals differently without
justification," and it maintains that Section 3 of DOMA "is motivated by disapproval of gay men
and lesbians and their relationships, an illegitimate federal interest." (Some of the asserted federal interests are rejected as illegitimate, and others are said either to restate the purpose to discriminate without explaining it or actually to be "subverted" by DOMA.)

It will be interesting to see how this litigation unfolds. Perhaps it will be the stimulus needed for Congress to repeal at least the federal definition section of DOMA, which as both the complaint in this lawsuit and Bob Barr in recent public pronouncements have concluded, undermines federalism by arrogating to the federal government the power to determine what is a valid marriage outside the immigration and naturalization context.

GLAD is the legal rights organization that litigated and won the Massachusetts case that recognized same-sex couples' right to marry under that state's constitution.

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