Gay couples launch Challenge to U.S. marriage law

New lawsuits could increase pressure on Obama to act on promises to support gay rights.

By John Schwartz -

Joanne Pedersen, left, and Ann Meitzen are planning to sue
because federal law does not recognize their CT same-sex union.

Joanne Pedersen tried to add her spouse to her federal health insurance on Monday. She was rejected. Again. The problem is that while Ms. Pedersen is legally married to Ann Meitzen under Connecticut law, federal law does not recognize same-sex unions. So a health insurance matter that is all but automatic for most married people is not allowed for them under federal law.
Ms. Pedersen and Ms. Meitzen plan to file a lawsuit Tuesday against the government in an effort to strike down the Defense of Marriage Act, a 1996 law that prohibits the federal government from recognizing marriages of same-sex couples.
They are plaintiffs in one of two lawsuits being filed by the legal group Gay and Lesbian Advocates and Defenders, a gay rights legal organization based in Boston, and by the American Civil Liberties Union.
A similar challenge by the gay rights legal group resulted in a ruling in July from a federal judge in Boston that the act is unconstitutional. The Obama administration is appealing that decision.
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 — including the insurance costs amounting to several hundred dollars a month in the case of Ms. Pedersen and Ms. Meitzen, and a $350,0000 estate tax payment in the A.C.L.U. case.
'It's just so unfair' The civil liberties union filed suit on behalf of Edith S. Windsor, whose spouse, Thea C. Spyer, died last year of aortic stenosis. The two women, New Yorkers who had been together for 44 years, married in Toronto in 2007. New York officially recognizes same-sex marriages performed in other states. Had the two been man and wife, there would have been no federal estate tax to pay.
“It’s just so unfair,” said Ms. Windsor, who is 81.
Taken together, said Mary Bonauto, the director of the Civil Rights Project for the Gay and Lesbian Advocates and Defenders, the cases show same-sex couples “are falling through the safety net other people count on.”
Traditionally, Ms. Bonauto noted, the federal government has left the definition of marriage to the states. “The federal government has respected those determinations, except in the instance of gay and lesbian couples marrying,” she said. The result, she said, is a violation of constitutional guarantees of equal protection.
In the Massachusetts case earlier this year, the Justice Department defended the Defense of Marriage law, and is likely to do so again as the two new cases move forward. A spokeswoman for the Department of Justice, Tracy Schmaler, said, “The Justice Department has a longstanding tradition of defending acts of Congress when they are challenged in court.”
The new cases, however, could increase the pressure on President Obama to act on his repeated promises to support gay rights. Mr. Obama has called for the repeal of the Defense of Marriage Act, saying it is discriminatory. But he has also said he supports civil unions but not same-sex marriage. Last month, however, at a meeting with liberal bloggers, he said he had been thinking “a lot” about that position, saying, “Attitudes evolve, including mine.”
Five states and the District of Columbia allow same-sex marriages to be performed, but 31 states have passed laws blocking them. The issue continues to echo politically. Last week, Iowa voters removed three of the Supreme Court justices who had participated in a unanimous decision allowing same-sex marriage.
Maggie Gallagher, the chairwoman of the National Organization for Marriage, a group that opposes same-sex marriage, said court challenges to the Defense of Marriage Act showed that gay 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.”
A question of justice? To Ms. Pedersen, the question is one of justice. She and Ms. Meitzen, who married in 2008, have been together in Connecticut for 12 years. Ms. Meitzen, a social worker, has had health problems, and Ms. Pedersen, a civilian retiree from the Department of Naval Intelligence, tried to enroll her spouse in the federal employee health benefits program — a move that would save them hundreds of dollars a month.
Both women had been married before, to men, and have grown children. The fact that the law values one of their marriages over another is a source of consternation, Ms. Pedersen said.
“If we were heterosexual, we wouldn’t be talking today, because we would have the benefits,” Ms. Pedersen said. “I would just like the federal government to recognize our marriage as just as real as everybody else’s.”

-end-