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
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.
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.
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.
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."
Raum, an attorney with the Alliance Defense Fund, which also backs the
law, pointed to the broad political support of the law.
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.
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."
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.
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
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.
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
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."
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."
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
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