Doma: Death by a Thousand Cuts?

08/15/2009 05:12 am ET | Updated May 25, 2011
  • Carlos A. Ball Author, 'The Right to be Parents: LGBT Families and the Transformation of Parenthood'; Professor of Law, Rutgers University

There has been much attention paid as of late to the Obama Administration's failure to push for the repeal of the Defense of Marriage Act. In the meantime, however, there are constitutional challenges being filed against DOMA that have a decent chance of succeeding, And even if they do not succeed, they are likely to bring greater attention to the inherent unfairness of this awful law.

There were challenges to DOMA brought in the earlier part of this decade, but those lawsuits were filed by same-sex couples who wanted to marry. What is different about recent lawsuits is that they involve the rights of same-sex couples who are married under state law.

Of the lawsuits filed, there are two in particular that are worth paying attention to. The first was brought by the Gay & Lesbian Advocates & Defenders, under the leadership of Mary Bonauto, who has to be one of the ablest and most effective civil rights lawyers in the country today. What is so smart about the GLAD lawsuit is that, rather than challenging DOMA as a whole, it focuses on a handful of crucial federal benefits that are being denied to same-sex couples who are legally married under Massachusetts law. Those couples are denied health insurance, social security, and tax benefits even though similarly situated individuals (i.e., heterosexual married couples) are able to enjoy the same benefits. In short, the way in which federal marital benefits are currently allocated in Massachusetts is a textbook case of unequal treatment under the law.

The second lawsuit worth keeping an eye on was filed last week by the Commonwealth of Massachusetts. It nicely complements the GLAD lawsuit. In that lawsuit, Massachusetts Attorney General Martha Coakley explains how DOMA forces her state to discriminate against its own citizens by making federal benefits that it administers (such as those under Medicare and Medicaid) available to some of its married citizens but not others. In doing so, the complaint alleges that Congress overstepped its constitutional authority to legislate in an area (i.e., the definition of marriage) that has traditionally been a matter of state law only.

Ultimately, what these types of lawsuits show is the constitutional strain created by a regime of federal rights and benefits that (1) is extremely generous to married couples and (2) permits states to define marriage however they want except when it comes to the possible inclusion of LGBT people.

It will be fascinating to see how the administration responds to these two lawsuits, especially given the controversy that it created when Department of Justice lawyers a month ago filed papers forcefully defending DOMA's constitutionality in a lawsuit brought in California.

The California lawsuit challenges DOMA as a whole, questioning the constitutionality of both the provision that seeks to excuse states from recognizing same-sex marriages entered into in other jurisdictions (Section 2) and the provision that limits federal rights and benefits to heterosexual couples (Section 3). The Massachusetts cases challenge only the latter, making it impossible for the administration to claim, as it did in the California suit, that DOMA is "neutral" on the issue of whether the law should recognize same-sex marriages.

DOMA's section 3 is anything but neutral. Indeed, I suspect that there are administration officials and lawyers who are sweating bullets as we write thinking of how they are going to respond to the lawsuit filed last week by Massachusetts. And that is a good thing because, sooner or later, the Obama people will realize that they cannot continue to forcefully defend these types of laws in court while at the same time taking pride in their commitment to equality and civil rights.

So, if nothing else, the lawsuits will (hopefully) prod the Administration to do the right thing by prodding Congress to get rid of this terrible law.