March 5, 2009
BOSTON (BP)--The federal government would be forced to recognize "gay marriage" and to provide benefits to such same-sex couples if a lawsuit filed March 3 in federal court against the Defense of Marriage Act is successful.
Under the suit, the government would have to recognize "marriages" between homosexuals in Massachusetts, Connecticut and any other state where "gay marriage" is legalized in the future. The suit, though, could have a far-reaching impact on other states.
It is the first major suit against the 1996 law, which was passed by votes of 342–67 in the House and 85–14 in the Senate and signed by President Clinton. The law prohibits the federal government from recognizing "gay marriage" and gives states the option of doing the same.
But in the 13 years since it became law, the national political climate has changed dramatically. President Obama -- whose Justice Department will be in charge of defending the law in court -- favors overturning the law, as does House Speaker Nancy Pelosi.
The lawsuit was filed by the New England-based Gay and Lesbian Advocates and Defenders (GLAD), the same group that successfully sued in Massachusetts and Connecticut to have "gay marriage" legalized. It's the first lawsuit against the Defense of Marriage Act by a major homosexual activist group and could eventually end up before the U.S. Supreme Court.
GLAD filed the suit in a federal court in Boston on behalf of eight same-sex couples and three surviving spouses, all of whom are or were "married" in Massachusetts and are seeking federal marital benefits -- for instance, spousal benefits for federal employees and the ability to file taxes jointly. The suit, GLAD lawyers say, does not target the entire law but seeks to overturn only Section 3, which prohibits the federal government from recognizing "gay marriage." The remainder of the law that gives protections to states will not be impacted, they say. That, though, is of little consolation to DOMA supporters, who long have warned that "gay marriage" lawsuits on the state level simply were setting the stage for a federal suit.
"Clearly, what these people are trying to do is force the other 48 other states and the federal government to recognize same-sex marriage," Mat Staver, head of Liberty Counsel, which supports the law, told Baptist Press. "Massachusetts cannot force the rest of the country to recognize same-sex marriage.... What they're trying to do is literally force every taxpayer in the country to endorse same-sex marriage."
Brian Raum, an attorney with the Alliance Defense Fund, which also backs the law, pointed to the broad political support of the law.
"Courts should never impose a system which guarantees that more kids will be brought up in homes without a married mom and dad," he said. "How can we justify hurting millions of children for the possible emotional benefit of a very small number of adults?
Raum also rejected GLAD's claim that the suit won't have any impact on states.
"It could have an immediate effect on the states," he told BP. "If a federal court were to strike down the federal definition of marriage ... then immediately those same individuals [who support the suit] are going to go around to the states and make the same claim that the state constitutions somehow violate the federal constitution."
The suit states that at least until 1996, the federal government "consistently deferred to the sovereignty of the States" regarding determinations of marital status.
"This is a case about federal discrimination against gay and lesbian individuals married to someone of the same sex, and the harm that discrimination has caused each plaintiff," the suit states.
Raum, though, said the federal government has not always deferred to each state's definition of marriage.
"The federal government [in the 1800s] took issue with the territory of Utah in regard to their definition of marriage, and in fact the federal government made a condition of statehood that the state of Utah outlaw polygamy," he said. "So, the federal government has always recognized that marriage has been between a man and a woman. Obviously, they've only had to enforce it in recent years when these challenges have arisen."
The Defense of Marriage Act was passed when Hawaii's Supreme Court appeared on the verge of legalizing "gay marriage." The fear at the time among the law's supporters was that not only would the federal government be forced to recognize "gay marriage" but that under the Constitution's Full Faith and Credit clause -- which says states are to recognize "public acts, records, and judicial proceedings" from other states -- "gay marriages" in Hawaii would be exported and lead to a nationwide redefinition of marriage.
Fear that that could happen led approximately 40 states -- including Hawaii -- to pass laws defining marriage in the natural, traditional sense. In recent years -- and in light of the court ruling in Massachusetts -- a significant number of states also put the definition of marriage in their state constitutions. Those amendments have proven very popular: Thirty states have passed them by an average margin of 68-32 percent.
Section 3 of DOMA says in part, "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife ...."
Conservatives will be watching closely what the office of Attorney General Eric Holder argues in the case. It could be several weeks before his office submits its first legal briefs. David Ogden, who would be the No. 2 man behind Holder and whose nomination is before the Senate, said in written testimony, "As a general matter, it is appropriate for the Department of Justice to enforce any law for which a reasonable argument can be made that it is constitutional. Under that standard, I would expect to be able to enforce DOMA."
Liberty Counsel and other legal organizations are expected to file friend-of-the-court briefs urging the court to uphold the law.
"The Obama administration," Raum said, "has made it clear that they would like to see DOMA overturned or repealed, so it remains to be seen how vigorously they're going to defend it."
Said Staver, "There's no question that what we've warned against is beginning to happen, and that's why we have said and continue to say that we need a federal constitutional amendment that defines marriage and protects it as the union of one man and one woman. It cannot be something that one state can experiment in anymore than we can allow one state to experiment in slavery. ... We need a uniform system that protects marriage, the basic bedrock of the family."
At least two lawsuits against the Defense of Marriage Act have been filed in recent years, but neither made it far. Both sought to overturn the entire law and not just one particular section. In one case in 2005, a federal judge ruled against a couple "married" in Massachusetts who wanted their license recognized in Florida; the couple's lawyer chose not to appeal. In another case, a three-judge panel of the U.S. Ninth Circuit Court of Appeals tossed out a suit in 2006 by a California same-sex couple, ruling the two men lacked standing because they had no marriage license.
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