by Brian Braiker | The Guardian
The law that bars the federal government from recognising same-sex marriages is under fierce legal attack from two sides this week.
For the first time a federal appeals court in Boston will hear arguments this Wednesday about the constitutionality of the the federal Defense of Marriage Act (Doma).
Meanwhile on Monday a gay rights legal organisation called Immigration Equality filed a lawsuit in New York on behalf of five legally married same-sex couples arguing that the 1996 law has had a disproportionately unfair impact on same-sex couples when one of the two is not an American citizen.
The two cases, which could potentially reach the supreme court, are the most prominent of the recent suits that would seek to overturn Doma. Enacted by Congress in 1996, Doma defines marriage as a union between a man and a woman, preventing the federal government from recognizing same-sex unions.
“We are on the winning side of history,” Vickie Henry, a lawyer at the legal group Gay and Lesbian Advocates and Defenders (Glad) told the Guardian. “We’re certainly on track to go to the supreme court and I think we’ve got a strong case if that happens.”
A federal judge in Massachusetts, where same-sex marriage is legal, declared a key section of Doma unconstitutional in 2010 after Glad and the state’s attorney general sued. The appeal by a bipartisan congressional group will be heard Wednesday by the federal appeals court.
Wednesday’s argument, most commonly referred to as Gill v the Office of Personnel Management, is a consolidation of three cases. Plaintiffs will argue that while the state affords them them the rights, benefits and protections given to heterosexual couples, the federal government, under Doma, denies them those benefits and protections.
Among the plaintiffs that Glad is representing are Al Koski and Jim Fitzgerald, who met in 1975 and were married in Massachusetts in 2007.
“We feel we are not being treated as equally and fairly as heterosexual couples,” said Koski, 69. “I filed to have Jim put on my health insurance and of course they denied me. His plan is inferior to mine. From September 2007, when we were married, the additional cost of us both having insurance has been $12,000.”
The Obama administration announced in 2011 that it would no longer defend the law in court. House speaker John Boehner hired a private attorney, former solicitor general Paul Clement, to defend the law in the Gill case.
Clement, who argued before the US supreme court last week on behalf of 26 states that oppose Obama’s health care law, did not return calls from the Guardian for comment.
But in legal briefs filed in court, Clement challenges the claim that Congress has no interest in providing a federal definition of marriage and must recognize the state’s definition.
“Congress has ample power to define the terms used in federal statutes to apportion federal benefits and burdens. Any other rule would turn the supremacy clause and our entire constitutional structure upside down,” Clement wrote.
Clement’s language drew an audible laugh of exasperation from Victoria Neilson, legal director for Immigration Equality, the gay rights legal organisation that filed Monday’s suit in New York.
“I think it’s interesting that Paul Clement thinks the federal government doesn’t have the authority to regulate health care, but he thinks it has the authority to decide who’s a family and who is not,” she told the Guardian.
Immigration Equality filed its suit on behalf of five legally married same-sex couples suffering the consequences of Doma’s effect on gay or lesbian immigrants who want to gain legal residence in the US through marriage to American citizens.
Lucy Truman, 43, a British surgeon and clinician is legally married in Connecticut to her wife Kelli Ryan. She has a good job at Yale university and a visa that will keep her here until 2013.
But the federal government does not recognise her marriage and therefore will not grant her residence here “We are legally married. Why can’t Kelli sponsor me for a green card?” she asked.
“We want to be together. We want to be able to put our roots down in the US. Her job is good, my job is good. It’s a good place to be. It just seems unfair.”
Truman said she also speaks for other plaintiffs who are not as fortunate as her: couples who have been forced to live apart or in exile.
“We have gotten an outpouring of support from other lesbian and gay immigrant families. For so many people this is the central issue in their lives and the one thing that really prevents them from living happily and securely as a family,” said Glad’s Neilson.
“This is an unprecedented intrusion of the federal government into an area that has been determined by state law for no other reason than to discriminate against gay and lesbian couples.”