News :: GLBT
Horserace to equality:
Federal marriage lawsuits by Lisa Keen
contributing writerWednesday Jul 15, 2009 A year ago, theare were no lawsuits in federal court seeking to establish equal rights for gay couples in marriage licensing. Now there are five.
These five are not equally matched horses heading for the same finish line. Two of the cases challenge one aspect of the federal Defense of Marriage Act (DOMA), while the other three seek to strike down statewide bans on gay marriage, arguing they violate the U.S. Constitution.
An enormously successful gay litigation group is waging one lawsuit on behalf of multiple plaintiffs. A recent law school graduate has mounted another lawsuit on behalf of himself and his 18-year-old fiancé.
The most recent entry is a lawsuit filed on July 8 by the Commonwealth of Massachusetts, the first state-driven lawsuit to enter the field. Massachusetts was also the first state to enable same-sex couples to obtain marriage licenses, in May 2004. More than 16,000 same-sex couples have obtained marriage licenses since then.
Challenging DOMA Section 3
Massachusetts’ lawsuit challenges DOMA, passed in 1996. DOMA provides that no state can be required to recognize the marriage of a same-sex couple licensed in another state and limits the interpretation of "marriage" for any federal purpose to only heterosexual couples. The Massachusetts lawsuit, Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, challenges only the latter part, known as Section 3. Attorney General Martha Coakley, who filed the lawsuit, said many of the state’s married residents and their families "are being hurt by a discriminatory, unprecedented, and, we believe, unconstitutional federal law."
The lawsuit was filed with the federal district court in Boston, the same court where the first and only gay community-driven lawsuit was filed. Gay & Lesbian Advocates & Defenders (GLAD), the group that won equal marriage rights in the courts of Massachusetts (2004) and Connecticut (2008), filed its challenge of DOMA Section 3 in March. GLAD’s lawsuit, Gill et al v. Office of Personnel Management et al, says DOMA’s Section 3 violates the Constitution’s Fifth Amendment guarantee of equal protection of the law by treating same-sex couples with marriage licenses differently than heterosexual couples with marriage licenses.
GLAD’s lawsuit represents eight married couples and three gay individuals whose spouses have died. It has already scored one victory. In June, the U.S. Department of Justice announced that the Department of State was immediately amending provisions that prevented the issuance of new passports to gay spouses who changed their names after legally marrying.
Challenging statewide bans
At least three other DOMA-related lawsuits have been filed in federal court in the past six months, but they are distinctly different from the Massachusetts lawsuits. They challenge statewide bans of same-sex marriage, arguing that they are in violation of the U.S. Constitution.
The highest profile and most sophisticated of these three lawsuits is Perry v. Schwarzenegger, filed by the newly created American Foundation for Equal Rights. The lawsuit was filed in May in federal district court in San Francisco on behalf of a lesbian couple and a gay male couple. It drew immediate and considerable media attention because its lead attorneys are the prominent conservative attorney Theodore Olsen and liberal attorney David Boies. Olson and Boies were opponents in the historic 2000 U.S. Supreme Court case, Bush v. Gore, the decision of which declared that George W. Bush was president.
The Perry lawsuit was prompted by Proposition 8, which amended the California Constitution to ban same-sex marriage. Perry argues that the inability of gay couples to marry in that state is a violation of their equal protection rights under the United States Constitution. A judge has promised a speedy trial and requested preliminary briefs be filed by August 7.
Another case in California, Smelt v. U.S., was filed in December after voters approved Proposition 8, but was initiated much earlier, in 2004, by a gay male couple, Arthur Smelt and Christopher Hammer, represented by a private attorney. Their legal challenge has been criticized by gay legal activists and by legal scholars as flawed and weak on several procedural grounds. But the lawsuit also garnered enormous media and community attention recently when it elicited a controversial brief from the Obama Justice Department. Even though President Obama has repeatedly stated he believes DOMA should be repealed, the Justice Department defended the law far beyond procedural matters, even claiming, "DOMA does not discriminate against homosexuals in the provision of federal benefits," a contention that seems boldly indefensible in light of the text of the law.
The remaining lawsuit, Bonilla v. Levine, is the least known and the least likely to succeed, according to legal scholars, because it is hobbled from the start by a David-and-Goliath dynamic. In this case, the attorney for the gay male couple challenging Louisiana’s same-sex marriage ban is one of the plaintiffs - Kristoffer Bonilla - who only recently graduated from law school. Goliath, of course, is the State of Louisiana and the United States government. Bonilla, and his 18-year-old spouse-to-be, John Wray, do not have the financial support or blessing of any gay legal or political group. And they’ve filed suit in a federal district court in New Orleans in the 5th U.S. Circuit Court of Appeals, one of the more conservative circuits in the country.
Part Two: Entering a lawsuit in federal court is a lot easier than entering a racehorse at the Kentucky Derby; almost anything with the metaphorical equivalent of four legs can do it. But a carefully prepared lawsuit has a much better chance of success. A lame lawsuit, like a lame horse, can do damage beyond itself.
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