Two more DOMA court challenges filed; five cases now pending

Mary Bonauto

Mary Bonauto

Two civil rights law firms on Tuesday announced the filing of two major lawsuits aimed at taking down the federal Defense of Marriage Act (DOMA). That brings to five the number of federal lawsuits now challenging the law banning recognition of same-sex marriage by the federal government.

The ACLU’s National LGBT Project filed suit in the U.S. District Court for the Southern District of New York to challenge DOMA’s treatment of Edie Windsor, the spouse of the late Thea Spyer, following Spyer’s death. The women had been together as a couple for 44 years and obtained a marriage license in Toronto, Canada, in 2007. Spyer died in 2009, following a long illness. But because DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples. The lawsuit is Windsor v. U.S.

Gay & Lesbian Advocates & Defenders (GLAD) filed suit in the U.S. District Court for the District of Connecticut on behalf of three lesbian couples and one gay man whose spouse recently passed away. The plaintiffs hail from Connecticut, Vermont, and New Hampshire. (Two other couples are to be added as plaintiffs at a later date—both from Connecticut.) This latest lawsuit, Pederson v. OPM, is similar to another, Gill v. OPM, that is on appeal to the 1st Circuit U.S. Court of Appeals. Both lawsuits argue that Section 3 of DOMA—which limits the definition of marriage for federal purposes to one man and one woman—violates the plaintiffs rights to equal protection of the law and is an improper intrusion of the federal government into state marriage laws.

Both organizations announced their lawsuits at 11 a.m. EDT Tuesday—the ACLU at the Gay & Lesbian Community Center in New York City, and GLAD at a hotel in Hartford, Connecticut.

Mary Bonauto of GLAD said her organization wants to “keep the pressure” on efforts to challenge DOMA and the harms it causes same-sex couples. She noted that the Pederson case, filed in Connecticut, would be appealed to a different circuit than the Gill case in Massachusetts. Pederson would be appealed to the 2nd Circuit; Gill has been appealed to the 1st Circuit. (New Hampshire is part of the 1st Circuit, noted Bonauto, but GLAD included a couple from that state because they were able to marry there beginning only this year, after the Gill case had already been filed.)

Edie Windsor lost her partner of 44 years, Thea Spyer, when Spyer died at age 77 in February of last year. Spyer had suffered for many years from multiple sclerosis. The two were married two years earlier in Toronto, and their relationship was the subject of a touching 2009 documentary, Edie and Thea: A Very Long Engagement, that has won numerous awards.

The two lawsuits filed today are now part of a five-lawsuit assault on DOMA. In addition to the two GLAD cases and the one filed today by the ACLU, the Commonwealth of Massachusetts’ case, Massachusetts v. HHS, challenges DOMA as a violation of the 10th amendment right of states to regulate such matters as marriage. And Lambda Legal Defense and Education Fund is representing a lesbian attorney who works for the 9th Circuit U.S. Court of Appeals to secure health benefits for her same-sex partner the same as are provided to attorneys married to opposite-sex spouses. That case is Karen Golinski v. OPM is waiting to be heard in the U.S. District Court in San Francisco.

In a politically controversial, yet expected, move, the Obama Department of Justice in October appealed both cases to the 1st Circuit.

In a strange twist, a Republican member of Congress filed a motion to intervene in the case to defend DOMA. Rep. Lamar Smith of Texas said the Obama administration’s defense of the law thus far had been “anemic arguments” and “faint-hearted advocacy.” Smith quietly withdrew that motion to intervene a week after DOJ filed its appeal to the first circuit, saying he could now provide the court with his arguments via a friend-of-the-court brief.

The ACLU lawsuit seeks to have DOMA declared as a violating of equal protection and to have refunded to Windsor federal estate tax she was required to pay following Spyer’s death.

One Response to Two more DOMA court challenges filed; five cases now pending

  1. John says:

    Now HERE Are the REAL heroes of our civil rights! Not the gutless, toothless, sycophantic insiders who pawn themselves off as activists. Get a clue: the Court, the Court, the Court! Only the Court is going to resolve either of these problems. Unless you are totally delusional, you have got to know that any legislative repeal of DADT or DOMA is, even if accomplished, only going to drag out the litigation with one more compromise of the First Amendment to appease the religionists.

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