Assault On Marriage Intensifies

Special Report - November 12, 2010
Homosexual activists and their allies have once again turned to the courts in the hopes of overturning the federal Defense of Marriage Act (DOMA)—filing two separate lawsuits challenging the law in two different states on the exact same day. Both lawsuits, filed November 9, challenge the constitutionality of the federal DOMA, which defines marriage for federal purposes as only between one man and one woman, and protects states from being forced to recognize the same-sex “marriages” of other states where it is legal.

On Tuesday, the Gay and Lesbian Advocates and Defenders (GLAD) filed a lawsuit challenging DOMA in federal district court in Connecticut in the case, Pedersen, et. al. v. Office of Personnel Management. In Pedersen, GLAD is representing three homosexual couples and one widower from three different states where same-sex “marriage” is currently legal (Connecticut, Vermont and New Hampshire). The couples are seeking specific federal benefits and protections that are currently extended only to married opposite-sex couples under DOMA (including federal employee and retiree benefits, social security benefits, and survivor benefits under federal pension laws). GLAD is arguing in the case that DOMA violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Pedersen case is the second major lawsuit GLAD has brought against DOMA. In July of this year, a federal judge in Massachusetts ruled that Section 3 of DOMA is unconstitutional in another GLAD lawsuit, Gill et. al. v. Office of Personnel Management. The same judge also issued a similar ruling in a separate lawsuit involving a challenge to DOMA, Commonwealth of Massachusetts v. U.S. Department of Health and Human Services. According to the Alliance Defense Fund (ADF), which is assisting the U.S. Department of Justice in defending DOMA, both decisions are on hold pending appeal. ADF filed “two motions to intervene to defend the federal DOMA” with a federal court in October, and the Department of Justice is reportedly expected to file its brief in the appeal in December.

“DOMA must fall,” said Mary L. Bonauto, Civil Rights Project Director for GLAD, in a press release announcing the Pedersen lawsuit. “We have to keep the pressure on and get DOMA off the books before it does even more harm.”

Also on November 9, the American Civil Liberties Union (ACLU) joined the New York Civil Liberties Union and a private law firm in New York in filing a separate lawsuit against the federal DOMA in the case Windsor v. USA. The Windsor case involves a challenge to DOMA brought on behalf of Edith “Edie” Windsor, the surviving partner of a lesbian couple from New York who “married” in Canada in 2007. Windsor, whose partner, Thea Spyer, passed away in 2009, is challenging DOMA because the federal government does not recognize their same-sex “marriage,” and therefore Windsor was “not able to claim the estate tax marital deduction that is available” to opposite-sex married couples when one spouse dies. According to the ACLU, Windsor had to pay over $350,000 in estate taxes after Spyer died, because she could not get the marital deduction. In addition to seeking to have the courts declare DOMA unconstitutional, Windsor is also seeking a refund for the estate taxes she had to pay. The ACLU explains that Windsor “alleges that DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same.”

If the federal DOMA is successfully overturned in the courts, it could adversely impact the DOMA laws of 37 states, including North Carolina, which is even more vulnerable to having its marriage laws challenged in the courts because it is the only state in the southeastern U.S. that does not have constitutional amendment defining marriage as only between a man and a woman. Measures that would give North Carolinians the opportunity to vote on a Marriage Protection Amendment have been introduced for seven consecutive legislative sessions, including the 2010 “Short” Session, but the current leadership of the General Assembly has refused to allow the bills to be brought up for consideration.

“With homosexual activists stepping up their attacks on the federal DOMA in the courts, it is more important than ever that North Carolina’s marriage laws be protected by a constitutional amendment,” said Bill Brooks, president of the North Carolina Family Policy Council. “We are hopeful that with new leadership in the North Carolina General Assembly, the Marriage Protection Amendment will finally get a vote in the State House and Senate when the legislature reconvenes for the 2011 session in January. As we’ve stated before, this battle over the definition and future of marriage is not going to go away, and in fact continues to escalate across the country. There is no more important issue to the long-term health of our State and nation than preserving the age-old definition of marriage as between one man and one woman, and the time for the people of North Carolina to vote on a Marriage Protection Amendment is now.”

Related resources:
The Issue That Will Not Go Away - FNC - Spring 2010

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