Lawsuit Challenges Federal DOMA

Special Report - March 6, 2009
On March 2, a lawsuit was filed in federal court challenging the constitutionality of the federal Defense of Marriage Act (DOMA) in an attempt by homosexual activists to require recognition of same-sex marriage in all 50 states. GLAD (Gay & Lesbian Advocates & Defenders) filed the suit in Boston on behalf of eight same-sex couples and three surviving “spouses,” all of whom were legally married in Massachusetts following a 2004 court ruling that legalized same-sex “marriage” in the state.

The suit challenges Section 3 of DOMA, which includes a statement that reads, “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.” This provision prohibits same-sex couples from receiving the same Social Security, federal income tax, federal employee and retiree, and issuance of passport benefits as married heterosexual couples. DOMA allows states to make their own determinations on recognition of same-sex marriages and the conferring of marital benefits. The measure passed Congress in 1996 by a vote of 342–67 in the House and 85–14 in the Senate and was then signed into law by President Clinton.

Supporters of DOMA have expressed concern that U.S. Attorney General Eric Holder, who was appointed by President Obama whose administration supports repeal of DOMA, may not provide an adequate and strong defense of the law. However, Deputy Attorney General Nominee David Ogden said in written testimony that “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 enforce DOMA.”

Mathew Staver, founder of Liberty Counsel and Dean of Liberty University School of Law, commented in a press release that “The sovereignty of each state to preserve the integrity of marriage must be maintained. While Massachusetts has chosen to rewrite the definition of marriage, it may not force the federal government and the rest of the country to adopt same-sex marriage.”

Currently, Massachusetts and Connecticut are the only states that have legalized same-sex “marriage,” both after successful legal challenges by GLAD. Vermont, New Jersey, and New Hampshire allow civil unions and California allows domestic partnerships. Thirty states have constitutional amendments defining marriage as the union of a man and a woman.

Overturning DOMA “could have an immediate effect on the states,” according to Brian Raum, Alliance Defense Fund attorney, in an interview with Baptist Press. “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.”

“This federal lawsuit could potentially eliminate one of the strongest layers of protection for traditional marriage in North Carolina,” according to Tami Fitzgerald, executive director of NC4Marriage. “In North Carolina, where we do not have constitutional protection for marriage, the repeal of the federal DOMA could not only force North Carolina to recognize same-sex ‘marriages’ from other states, but would make our own marriage statutes even more vulnerable to being overturned by a court. Now is the time for the state legislature to act and pass the Marriage Protection Amendment that would allow the people of North Carolina the opportunity to provide the strongest possible protection for marriage. The threat is looming large and cannot be ignored. The people must be allowed to vote.”

Copyright © 2009. North Carolina Family Policy Council. All rights reserved.