James Esseks

  • November 9, 2010
    A group of same-sex couples is joining the battle to defeat the so-called Defense of Marriage Act (DOMA), which bars government recognition of gay marriages.

    The couples are represented by two separate federal lawsuits lodged on their behalf by the Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union, The New York Times reports.

    As The Times notes, "The two new lawsuits, which involve plaintiffs from New York, Connecticut, Vermont and New Hampshire, expand the attack geographically and also encompass more of the 1,138 federal laws and regulations that the Defense of Marriage Act potentially affects ...."

    The lawsuit brought by GLAD is its second one challenging the constitutionality of DOMA. In July, U.S. District Court Judge Joseph L. Tauro ruled in Gill et al v. Office of Personnel Management et al, that the law is unconstitutional on a number of fronts. Not only does the law violate the equal protection clause, it subverts the rights of states to regulate marriage, Tauro concluded. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid," the judge wrote.

    GLAD's new lawsuit, Pedersen et al. v. Office of Personnel Management challenges the law's denial of "protections and responsibilities to married gay and lesbian couples."

    In a press statement, GLAD's Civil Rights Project Director Mary L. Bonauto said, "DOMA must fall. In 1996, when Congress passed DOMA, the stated goal was to harm gay people and same-sex families with this law, and sadly, it has succeeded. Married gay and lesbian couples fall through the federal safety nets that exist for other married people. We have to keep the pressure on and get DOMA off the books before it does even more harm."

    As reported by Chris Geidner for Metro Weekly, the ACLU and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP are representing Edith Windsor, the widow of Thea Spyer. "Windsor was forced to pay a $350,000 estate bill because of the federal government's refusal to recognize Windsor's marriage to Spyer. Robert Kaplan, a partner at the law firm, told Metro Weekly, "I have an 81-year-old client, and $350,000 is a hell of a lot of money - a huge amount of money that she paid in violation of the Constitution. My client had to pay the government, and she wants her money back. What we're seeking in the case is a check back - with interest."

    In a press statement on the lawsuit, ACLU's Lesbian, Gay, Bisexual and Transgender Project Director James Esseks said, "Edie and Thea were together for 44 years, the last two of which they were lucky enough to spend as a married couple. All Edie is seeking is the same treatment for her marriage that the federal government appropriately gives to married straight couples. It is completely unfair for the federal government to pretend the Edie and Thea were strangers, and to tax them that way."

    The Times notes that while President Obama has called DOMA discriminatory, and for its repeal, the Department of Justice, citing a tradition of defending congressional acts in court, has appealed Judge Tauro's ruling, and is likely to defend the law against the new challenges.

    Earlier this year, Bonauto talked with ACSblog about progress to advance marriage equality - noting the states that now recognize same-sex marriages - and the challenges that remain. Her interview is available here.