By Jonathan Saltzman, Globe Staff | March 3, 2009
Fifteen gay and lesbian residents from Massachusetts who wed after this state legalized same-sex marriages plan to file a discrimination suit today, challenging a federal law that defines marriage as a union between a man and a woman. Six same-sex couples and three men whose husbands have died - one of the deceased was retired congressman Gerry E. Studds - said in the suit that the 1996 Defense of Marriage Act treats them like second-class citizens and is unconstitutional. The complaint is being filed in US District Court in Boston. The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples. Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse's last name on a passport.
"It hurts," said Dean T. Hara, who was married to Studds from May 2004 until the retired congressman's death in October 2006, as he discussed the federal government's denial of a $255 lump-sum death payment and thousands of dollars in benefits as the surviving spouse of a retired federal employee. "But at the same time I realize that I, as a man, need to stand up for what I believe in. This is a nation of laws, and we're all supposed to have equal treatment under the law."
Mary L. Bonauto, the civil rights lawyer for Gay & Lesbian Advocates & Defenders who was lead counsel in Goodridge v. Dept. of Public Health - the Massachusetts Supreme Judicial Court case in 2003 that legalized same-sex marriage in the United States for the first time - said the suit asks the court to strike down the Defense of Marriage Act because it targets gays and lesbians for discrimination. "This is a case that should go to the Supreme Court and in all likelihood will go to the Supreme Court," she said. If the plaintiffs win, she said, it would not extend same-sex marriage beyond Massachusetts and Connecticut, the two states where it is legal. But it would dismantle a federal statute that affects more than 1,000 marriage-related benefits, and it would be a huge victory on symbolic and practical levels for supporters of same-sex marriage, according to legal specialists.
"We've got this major federal statute that inflicts really substantial harm on very large numbers of gay people just for being gay people," said Andrew Koppelman, a Northwestern University law professor. "The federal government declares to these people that it regards their marriages as worthless and would not give those marriages the protection and recognition that it gives to all other marriages. It's quite significant if that is invalidated."
A handful of federal agencies and officials are named as defendants in the suit. A spokesman for President Obama, who has spoken of repealing the Defense of Marriage Act but does not support same-sex marriage, said the White House had no comment....
I do hope these individuals don't have any expectations for this lawsuit. It will not end well.
Understand: I'm not saying that it's not a cause worth fighting -- though I'm not sure that I think that kicking the fight to a higher level today is a particularly bright idea. I'm not saying that the argument does not have merit; I think that it does. Understand that I'm also not saying this is a publicity stunt, or anything of that sort; these people have good reasons to fight this fight. I'm saying that I expect this case to be lost, and that the loss may well be not only very expensive but Pyrrhic, if one can have a pyrrhic loss. There will be some nasty side- and after-effects, let's say.
It's also an interestingly sophisticated legal argument. It's not forcing states to recognize marriages that they don't already. It doesn't seem to touch Fair Faith and Credit. Instead, it's aimed only at forcing the federal government to recognize those relationships that have already been recognized by the states. As such, it would produce an oddly limited and discriminatory result -- whether or not the federal government gave you certain benefits would depend entirely on whether you lived in (for the moment) Massachusetts, Connecticut, Vermont and New Hampshire and possibly New Jersey. (It's not entirely clear whether domestic partnership registration would fulfill the same requirements; if so, then add California, Oregon, Maine, Washington state and -- heh -- DC itself)
My guess -- and it's only a guess -- is that if the case proceeds, there's maybe a break-even chance that the plaintiffs will win in district court. Massachusetts is a pretty liberal place, so we are told repeatedly. (I might argue that the state has an interesting tendency to select legislators that are somewhat more liberal than the population at large, but that's just a guess based on very little, and neither here nor there besides.) The district judges are of the area, generally speaking, so it's not entirely unrealistic that the plaintiffs could win at that level. The government will almost certainly appeal. Given that the administration has defended Bush-era positions on national security issues that are expressly at odds with Obama's stated positions, expecting that they would not appeal this one up the line would be foolish. (To be sure, the administration has come out expressly against DOMA, along with "Don't ask, don't tell". I suppose the interesting question here would be whether or not the government is willing to defend the position at all, or will simply rollover and try to decline to defend. That could be terribly interesting. Nonetheless, betting on a rollover would be extraordinarily unwise.)
Assuming the government appeals, the plaintiffs are almost certain to lose at the Court of Appeals level. With the exception of the Ninth Circuit -- which gets smacked down with impressive regularity by the Supreme Court -- the circuits are all relatively conservative. It's really pretty much their job to be so. If the circuit court upholds DOMA, which is a very safe prediction, then the plaintiffs appeal to the Supreme Court ... which will almost certainly refuse to hear the case. They have no reason to do so, unless someone brings a suit -- now-ish, really -- out of a circuit likely to overrule DOMA. (Yes, I'm lookin' at you, Ninth.) Only if there's a conflict in the circuits, or if the Court wishes to clarify a principle or point of law are they likely to hear the suit. And honestly ... I don't think anyone who wants the law to fall wants this Court to hear this case.
In the meantime, regardless of the district and Appeals courts decisions, conservatives are likely to grab onto the suit to try to whip their followers back into an antigay voting frenzy. It really wouldn't take much. One of the things that this country's history shows is that when things get bad, people strike out against the most convenient minority groups at hand. The antigay Right will start putting constitutional amendments on state ballots again, to try to rally the troops around one concrete thing they can all understand. And this is an easy way to strike out; you don't have to go and beat someone up, you don't have to call them names, all you have to do is to cast a nice anonymous vote.
The wildcard in all this is: what will Congress do, whether the lawsuit succeeds or fails? After all, the Republicans plus the Blue Dog Democrats constitute a bare majority, and would vote in a near-monolithic block for the law. If the courts decide that DOMA should fall, they might even have enough support to pass a new version with more teeth -- dragging along DADT in its wake -- and attach it to the Judiciary act, preventing the federal courts from hearing further challenges. (It really is surprising that Congress doesn't do that more often; I wonder if perhaps amending the Judiciary Act takes a supermajority.) There aren't enough votes in that majority to sustain the renewed law over a presidential veto ... but then, if the states run around passing their own constitutional amendments, you don't actually need DOMA, do you?
Again, I'm not saying not to fight the good fight. (Though I will say that I think the timing is slightly braindamaged.) I'm saying to expect to lose, and to expect some truly impressive collateral damage. I wonder what the political strategy is to fight this fight, and to contain the damage? There has to be one ... I hope.
Hey, it's possible that I'll be wrong, of course. Wouldn't it be nice if I were?Posted by iain at March 03, 2009 01:37 PM