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Back to Section One | Back to Arts & Entertainment
posted Friday, November 12, 2010 - Volume 38 Issue 46
GLAD/ACLU: Two new lawsuits versus DOMA
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GLAD/ACLU: Two new lawsuits versus DOMA

by Mike Andrew - SGN Staff Writer

Two new lawsuits challenging the constitutionality of DOMA - the federal Defense of Marriage Act - were filed on November 9.

Pedersen v. Office of Professional Management (OPM) was filed by GLAD (Gay and Lesbian Advocates and Defenders) in the U.S. District Court for Connecticut.

Joanne Pedersen, the principal plaintiff, was legally married to her spouse, Ann Meitzen, under Connecticut state law.

Pedersen is a retiree from the federal Department of Naval Intelligence but has been prevented from adding Meitzen to her health insurance plan because DOMA prohibits the federal government from recognizing same-sex marriages, even when they are legal in the state in which they occurred.

Other plaintiffs in the case failed to get time off under the Family and Medical Leave Act, or benefits through Social Security.

GLAD is seeking a declaration that the one-man-one-woman definition of marriage enshrined in DOMA discriminates against these plaintiffs because it denies them benefits all straight couples can get.

The other lawsuit, Windsor v. U.S., was brought by the ACLU and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison in the U.S. District Court for Southern New York.

Edie Windsor and Thea Spyer lived together as a committed couple for 44 years. They became a couple in 1965, got engaged in 1967, and married in Canada in 2007, after it became legal.

Spyer died in 2009, and the federal government taxed Spyer's estate as though she and Windsor were strangers rather than a married couple.

Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes. But DOMA prevents the federal government from recognizing the survivorship rights of a same-sex spouse.

Windsor had to pay $350,000 in estate taxes that she would have kept had her marriage, which was legal in Canada, been recognized in the U.S.

The ACLU argues that it is a denial of the equal protection clause of the 5th Amendment to the U.S. Constitution for the federal government to pick and choose which marriages it will recognize for federal purposes, when otherwise it leaves that question entirely up to the states.

Both cases show some similarities to GLAD's other DOMA case, Gill v. OPM.

In that case, District Court Judge Joseph Tauro ruled that DOMA violates the equal protection clause of the 5th Amendment because there was no rational basis to exclude same-sex couples from marriage and the benefits that flow from it.

The U.S. Department of Justice appealed Tauro's ruling, and he stayed implementation of the decision pending appeal.

The new cases also show some superficial resemblance to Perry v. Schwarzenegger, in which federal judge Vaughn Walker decided that California's Prop 8 violated the 14th Amendment.

Perry involved the right of same-sex couples to marry, however, while Gill and the two new cases involve federal recognition of same-sex marriages in jurisdictions where they are already legal.

Writing on Towleroad blog, Ari Ezra Waldman, an instructor at California Western School of Law in San Diego, California, said that the new suits have 'a strong likelihood of success.'

NOM chair Maggie Gallagher discounted the legal arguments, charging that LGBT rights advocates 'continue to push a primarily court-based strategy of, in our view, inventing rights that neither the founders nor the majority of Americans can recognize in our Constitution.'

Plaintiff Joanne Pedersen summed up the issue succinctly for the The New York Times.

'If we were heterosexual, we wouldn't be talking today, because we would have the benefits,' she told the Times reporter. 'I would just like the federal government to recognize our marriage as just as real as everybody else's.'

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