Thursday, October 27, 2011
DOMA - - - the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again.
In a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers. The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.
Paragraph 67 of the Complaint distills the argument:
The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.
The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder.
Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed." The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." The argument is that as a result of DOMA's application to federal military benefits,
the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.
The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - - $1.5 million dollars - - - earlier this month. This newest lawsuit may occasion even higher costs.