News :: GLBT
GLAD challenges federal DOMA by Ethan Jacobs
associate editorTuesday Mar 3, 2009 UPDATE 3/3/09, 4:00 p.m.: Sen. John Kerry weighs in on the lawsuit.
UPDATE 3/3/09, 12:15 p.m.: Attorney General Coakley announces support for DOMA challenge.
Since the 2001 filing of the landmark Goodridge suit Gay and Lesbian Advocates and Defenders (GLAD) had largely confined its marriage equality advocacy to the state courts, but this month the advocacy law firm turned its sights on Washington, specifically on the 1996 federal Defense of Marriage Act (DOMA). GLAD plans to file suit March 3 in the Federal District Court of Massachusetts, challenging provisions in section three of DOMA that bar the federal government from granting certain protections to legally married same-sex couples. If successful the suit would overturn only those specific provisions of DOMA, not the entire statute, which prevents federal recognition of any same-sex marriage and also allows states to deny recognition of same-sex marriages performed in other states.
GLAD believes the suit may ultimately be decided by the U.S. Supreme Court, which would mark the first time the nation’s highest court heard a major DOMA challenge. GLAD filed the suit, called Gill, et al vs. Office of Personnel Management, et al, on behalf of eight couples and three widowers, all from Massachusetts. Among the plaintiffs is Dean Hara, widower of the late Congressman Gerry Studds.
Janson Wu, an attorney for GLAD working on the case, said the plaintiffs have been denied a range of important benefits under DOMA, and these benefits will be the focus of the suit. The Office of Personnel Management, which administers federal employee benefits, turned down Hara’s application to receive survivor benefits through Studds’ federal pension, including health insurance; Hara currently pays about $7000 per year out of pocket for health insurance that other surviving spouses of federal employees would receive at no cost. Hara was also denied the lump sum Social Security death benefits used by spouses to pay for funeral costs.
"You realize when you get married there are both benefits and responsibilities, and it hurts to realize that you’re not being treated fairly," said Hara, who lives in Boston "... Our marriage is being treated differently, [and] I am being denied something that his colleagues and anyone who works for the federal government can leave on to the people that they love. I think that’s a basic human feeling, that in the passage of time, that their spouse will be alone, and they’re always concerned that that person will be taken care of, and that’s your basic family value."
Another plaintiff, Herb Burtis, a 78-year-old voice teacher from Western Mass., lost his spouse and partner of 60 years, John, last August. Burtis had cared for his husband, who had Parkinson’s disease, for the last 16 years of John’s life, and both received Social Security payments. John received a higher monthly payment than Burtis, and if their marriage had been recognized by the federal government Burtis would have been entitled to receive future Social Security payments at that higher rate.
"That’s part of the safety net the federal government has set up to ensure that widowers and widows have security in old age. ... And [if the federal government recognizes their marriage] that comes out to an extra $700 a month, which is $8400 a year, and that’s money he needs to make ends meet and ensure financial security in his old age," said Wu.
One of the plaintiff couples in the suit, Mary Ritchie and Kathy Bush of Framingham, are suing for unfair tax treatment and denial of federal spousal benefits. Ritchie works as a state police officer, and Bush is a stay-at-home parent who raises the couple’s two children. Ritchie and Bush have been together for 19 years. Wu said their inability to file taxes jointly at the federal level costs them more than $14,000 each year, and their extra tax burden is expected to increase. Bush would also be ineligible to receive line-of-duty survivor benefits if Ritchie were killed in action because the federal government funds those benefits.
Nancy Gill, the name plaintiff in the suit, and her spouse, Marcelle Letourneau, live in Bridgewater and are raising two children. In GLAD’s suit the couple alleges discrimination in federal benefits. Gill, a postal employee, is prohibited from covering Letourneau on her health plan.
GLAD’s suit also challenges the federal government’s refusal to recognize a same-sex spouse’s new name if one or more spouses choose to change their names while getting married. Plaintiff couple Al and Keith Toney, who married in 2004 and live in a Worcester suburb, raised Al’s daughter from a previous marriage and have cared for several foster children. When they married Keith changed his last name from Fitzpatrick to Toney on the marriage license form, but the federal government refused to use Keith’s new last name on his passport. His driver’s license lists him as "Keith Toney," but on his passport he remains "Keith Fitzgerald."
"Now when they travel they’re subjected to that insecurity of having different names on different identification," said Wu.
GLAD’s suit only targets the provisions in section three of DOMA that block same-sex married couples from receiving equal treatment in taxes, federal employee spousal and survivor benefits, Social Security and name changes. Wu said despite the narrow focus of the suit GLAD believes that a Supreme Court ruling in their favor could deal a crippling blow to DOMA as a whole.
"Our legal argument is that [the portions of section three targeted in the lawsuit are] a violation of our federal government’s guarantee to treat citizens equally by refusing to recognize the marriages only of same-sex couples, and that principle of equality should apply in other contexts if we’re successful," said Wu. While GLAD believes the suit stands a strong chance of reaching the Supreme Court, Wu said it was too soon to tell how long it might take to get there.
LGBT legal advocates have long shied away from challenging DOMA, focusing instead on the state courts. GLAD in particular has had success in New England’s state courts, serving as part of the landmark legal team that won a 1999 decision from the Vermont Supreme Court in Baker vs. State that paved the way for that state’s groundbreaking civil union legislation. GLAD famously litigated Goodridge vs. Department of Public Health, winning a 2003 decision from the Massachusetts Supreme Judicial Court that granted same-sex couples the right to marry. And last October the Connecticut Supreme Court legalized same-sex marriage in their ruling in GLAD’s Kerrigan and Mock vs. Connecticut Department of Public Health suit.
Wu said DOMA has done significant harm to same-sex couples married in Massachusetts, and with nearly five years of legal same-sex marriage under the Bay State’s belt the time is ripe for a challenge.
"[The case] certainly can and may reach the Supreme Court level, and we think the Supreme Court is receptive to these fundamental notions of equality and the balance between federal and state governments," said Wu.
Of all the plaintiffs in the suit Hara has the highest public profile, and he said he was honored that GLAD invited him to be a part of the suit. But he did not make the decision to join the suit lightly. When Studds, who passed away in 2006, retired from Congress in 1997 he and Hara deliberately retreated from public life, settling in Boston and largely avoiding the public spotlight. Studds was the first openly gay member of Congress, having come out in 1983 after it was revealed that he had had a relationship with a congressional page. Hara said he expects the federal DOMA challenge will mean returning to being a public figure, at least for the duration of the suit.
"It’s a very big decision for me, because I know, having seen what Gerry lived through, I have to be aware of the good and the bad. I have thought about it a lot, and I keep coming back that as a man I grew up believing that a man stood up for what he believed in, an American stands up for what they believe in and try to make this country better, and I learned growing up and being a person of faith that God loves us all," said Hara. "Every way I looked at it I could not justify not doing something and sitting back and taking the easy way out. And I’m honored in a way to be able to be able to continue a lot of the work that Gerry did, but they’re very big shoes to fill."
In 1996 Hara sat in the visitor’s gallery in the House of Representatives as Studds argued against DOMA from the House floor. At the time the two had been a couple for five years, said Hara, and the idea of marriage or even civil unions for same-sex couples seemed like a remote possibility. Hara said when the couple married in 2004 they knew that DOMA could block Hara from receiving Studds’ pension benefits as a surviving spouse, and he said friends of the couple "knew that if they wanted to get Gerry really riled up they could talk about DOMA, and Gerry would talk about the inequity of it." He said Studds was angered that he could not pass along the benefits he earned representing his Cape Cod district from 1973 until 1997 to Hara, while other colleagues could pass along their benefits to their spouses.
Hara said despite his awareness that DOMA could block him from receiving Studds’ survivor benefits, it was still a shock to find himself in the position of filing suit against the federal government to win the rights to those benefits.
"I am surprised to find myself where I am now. I never would have thought that I would be one of those people who needed to stand up and ask for fair and equal treatment," said Hara.
Ethan Jacobs can be reached at ejacobs@baywindows.com
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