Today, Gay and Lesbian Advocates and Defenders (GLAD) filed the first concerted, multi-plaintiff legal challenge to Section 3 of the 1996 federal Defense of Marriage Act (DOMA). GLAD is representing a group of LGBT plaintiffs who have been harmed by the federal refusal to recognize their marital rights. Under Section 3, legally married same-sex couples are excluded from any federal law or program that benefits other married individuals.
The consequence of Section 3 is that gays and lesbians have been denied spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and in the issuance of passports. In fact, there are 1,138 federal laws that confer rights and responsibilities based on marital status. In Gill et al. v. Office of Personnel Management — filed in federal District Court in Boston — the plaintiffs are arguing that Section 3 is unconstitutional on two grounds. From GLAD’s press release:
GLAD argues that DOMA Section 3 violates the federal constitutional guarantee of equal protection as applied to federal income tax, Social Security, federal employees and retirees, and in the issuance of pasasports. GLAD also contends that DOMA Section 3 is an unprecedented intrusion by the federal government into marriage law, always considered the province of the states.
One of the plaintiffs in the case is Dean Hara, the surviving spouse of Gerry Studds, the late Democratic congressman from Massachusetts. Studds, the first openly gay congressman, married Hara in 2004, just one week after Massachusetts legalized marriage equality.
The federal government has denied Hara access to Studds’s congressional pension, health insurance, and other protections available to surviving spouses of federal employees. The only people who are ineligible for these benefits are same-sex partners and people convicted of espionage or treason, according to the Office of Personnel Management. If the federal government recognized the marriage, Hara would have been eligible for a lifetime annual pension of about $62,000, which would grow with inflation. Studds himself gave an impassioned speech against DOMA on July 11, 1996, specifically mentioning the potential harm of Section 3:
I have paid every single penny as much as every Member of this House has for that pension, but my partner, should he survive me, is not entitled to one penny. I do not think that is fair, Mr. Speaker. I do not believe most Americans think that is fair.
On Sunday, ThinkProgress interviewed Hara, who explained that he decided to join the lawsuit in February, coinciding with the trouble he was having getting benefits from the federal government:
This is, first of all, something — an issue I’ve been dealing with since shortly after Gerry’s passing in October 2006. … I only would want to be treated the same as any other surviving spouse of a public servant or a federal employee. … The basic principle is what fair is fair and discrimination is discrimination. If it happens to me it will happen to someone else, and I’m sure it is happening to other people.
President Obama has repeatedly expressed his support for the repeal of DOMA. “In the past election, one of the main topics was about change,” said Hara. “I think one way of looking at it is it’s about change and accepting diversity, and I believe that I’m no different than anybody else. … I should get the same benefits as any other spouse of a federal employee for 27 years. I think our relationship may look different but it’s ultimately the same.”
Read the complaint here (pdf).