Tuesday, March 3, 2009

DOMA section 3 Challenge Filed

120pxwikiwed Section 3 of DOMA, the Defense of Marriage Act [codified at 1 USC 1] provides that

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, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Gay & Lesbian Advocates & Defenders (GLAD) filed a 92 page complaint today in the US District Court for Massachusetts.  Same-sex marriage has been recognized as a matter of state law in Massachusetts since the state’s highest court decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

The lawsuit has fifteen plaintiffs, residents of Massachusetts, alleging that DOMA section 3 violates their Fifth Amendment rights to equal protection.  The Complaint has 13 counts, each of which contain language similar to this paragraph (number 350 in Count I):

To the extent that the disparity of treatment with regard to federal employment-related benefits available to Nancy and Marcelle is, in fact, mandated by DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly-situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.

Counts 1 – 3 are related to federal employee health benefits, counts 4-9 are related to IRS determinations, counts 10-12 are related to Social Security benefits, and count 13 concerns the State Department’s passport policies.    The GLAD website includes a video, DOMA background information, a brief synopsis of the legal arguments and a discussion of the decision to seek a judicial remedy rather than a legislative one through Congress.

This complaint and its accompanying materials could provide an excellent short simulation in class or the foundation for a student project.

RR

http://lawprofessors.typepad.com/conlaw/2009/03/doma-section-3.html

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Comments

Yes, I totally support it because the civic union and domestic partner or even gay marriage in some states can not give you the federal benefits. I am from California, I think if DOMA can be overturned. It's not necessary to fight with No No. 8 proposition anymore. However, it seems a long way to make it happen.

Posted by: Dennis | Mar 5, 2009 7:53:28 PM

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