DOMA, DOMA, DOMA: 1, Judicial challenges

Last week, while men in power were getting called out for behaving badly (see under: Cain, Herman; Penn State football), the Senate Judiciary Committee (SJC) behaved well—by voting out of commmittee a bill that would repeal the Defense of Marriage Act. As I mentioned last week, no one expects the repeal bill, called the Respect for Marriage Act, to actually come to the Senate floor this year.

But that’s not really the point of the SJC’s action.

DOMA (the Defense of Marriage Act) is under attack on quite a few fronts. At every front, those involved are looking over their shoulders and watching what’s happening elsewhere—which means that while no single success brings it down, each one reverberates and affects the chances in the next battle. In theory, every branch of government is independent; in reality, they’re always watching each other. The SJC’s vote affects the other branches, just as the various lawsuits against DOMA surely gave the senators on the committee the courage to move Feinstein’s bill forward. When a judge considers the papers in front of him, he or she also has in mind that where the president, Congress, and public opinion all stand. I know, I know, judges are supposed to be independent and to decide the facts and the law in a pure space-like vacuum influenced only by the mathematical abstracts of the ideas on the page. But mathematics and physics aside, no one comes to their conclusions about anything important in a vacuum; we all consider each others' points of view as we change our own.

So, for those keeping score at home, here is a primer for the primary actions under way against DOMA, each of which is weakening the federal ban on recognizing my marriage (and more than 100,000 others) in its own special way.

  1. Judicial. There are so many lawsuits against DOMA under way that not even the LGBT organizations’ spokespeople could remember them offhand. Thanks particularly to Carisa Cunningham at GLAD--marriage-lawsuit central, since they’ve been the winning-est group on the issue--who sent me an internal spreadsheet listing all the ones she knew of. These lawsuits are under way in different circuits, with different sponsors and different reasoning.
    1. New England cases, First and Second Circuits.
      The GLAD-based cases rely on two simple ideas: The federal government has no right to pick and choose which marriages it recognizes (DOMA Section 3 should be overruled based on the Fifth Amendment’s guarantee of equal protection under the law); and states have traditionally had jurisdiction over family law, including the right to define marriage (DOMA Section 3 should be overturned under the Tenth Amendment, reserving non-enumerated powers to the states). These aren’t right-to-marry lawsuits but lawsuits seeking federal recognition for existing same-sex marriages that were performed in one of the five New England states that have equal-marriage laws. Married same-sex couples are the plaintiffs here.  
    2. Gill v. Office of Personnel Management (GLAD, March 2009) and Commonwealth v. Dept of Health and Human Services (Massachusetts Attorney General Martha Coakley, March 2009). My favorite of the lawsuits.
      • Won at the trial court (Judge Tauro).
      • Now fully briefed and on appeal to the First Circuit Court of Appeals, which is expected to hear arguments in January 2012.
    3. Pedersen v. Office of Personnel Management (GLAD, November 2010) is just like Gill, but its plaintiff couples were married in Connecticut, Vermont, and New Hampshire.
      • Filed in Connecticut, in the Second Circuit Court of Appeals.
      • Now fully briefed at the trial court; decision is expected between now and February 2012.
    4. McLaughlin v. Holder, Panetta, et al (Servicemembers Legal Defense Network, October 2011). A new First Circuit case, just filed on behalf of military personnel whose spouses are the same sex.
    5. New York.
    6. Windsor v. United States (ACLU, November 2010). Much like Gill, but in New York, which is the Second Circuit. The plaintiff, Edie Windsor, has a beautiful story: She’s a widow who had been with her wife for 44 years. The U.S. government is trying to tax the estate as if her wife had been a stranger instead of a spouse. Do see the little video they have up!
    7. California.
    8. Gill v. Office of Personnel Management (Lambda Legal, January 2010). Much like Gill, with the twist that the plaintiff was working for the Ninth Circuit Court of Appeals when the federal government denied her health insurance for her spouse.
      • For technical reasons, had to refile in April 2011.
    9. Perry v. Brown (née Perry v. Schwarzenegger) (David Boies and Ted Olsen, Americans for Equal Rights, May 2009). Challenges Proposition 8, a popular referendum that rolled back California’s law allowing same-sex marriages. This one is a right-to-marry lawsuit and sorta-kinda tries to establish a federal right to same-sex marriage, at least in California.
      • Won at the trial court (Judge Walker).   
      • California’s officials refused to appeal. Prop 8’s backers stepped in to bring the appeal.
      • Now the Ninth Circuit has to decide whether Prop 8’s backers have what’s called “standing” to bring the lawsuit. If they do, the Ninth Circuit will examine the merits of the appeal.
    10. There are a number of other cases related to deportation, federal pensions, and bankruptcy -- too many to enumerate, really, and mostly not head-on challenges like these.

The next post will include the actions taken by the executive and legislative branches. Tune in, same bat time and same bat channel...