GLAD files another challenge to DoMA, this time in 2d Circuit

By Nan Hunter -

Tomorrow lawyers for GLAD will file a complaint in federal district court in Connecticut challenging the constitutionality of the Defense of Marriage Act (DoMA), the law that prohibits recognition of same-sex marriages under any federal program. The new case parallels Gill v. OPM, the DoMA challenge that GLAD won in federal court in Massachusetts last summer that is now in the early stages of appeal before the First Circuit.
The second case, Pedersen v. OPM, is being brought on behalf of same-sex couples and one widower who live in Connecticut, New Hampshire and Vermont. Because cases brought in federal court in Connecticut are appealed to the Second Circuit, this case will insure that two separate appellate courts will rule on the constitutionality of DoMA. If the two courts reach different results, the chances of the Supreme Court granting review will substantially increase. There is little likelihood that the Supreme Court will accept the Gill case if the government wins, but it's a virtual certainty if plaintiffs win.  If plaintiffs lose in Gill, however, the Pedersen case will give them a second shot at winning a favorable ruling and also create a circuit split, the most common reason for the Supreme Court agreeing to decide a case. The third DoMA challenge - Windsor v. U.S., which is being brought in New York - also creates this possibility.
As in Gill, the plaintiffs in Pedersen seek a declaratory judgment that DoMA is unconstitutional and an injunction barring its enforcement. The complaint alleges that Congress had no legitimate purpose in enacting DoMA.

Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex.  Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.
At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest.

Also like Gill, the legal claims in Pedersen are founded on the Equal Protection Clause. 
Although the Prop 8 litigation has gotten much more attention, mostly because of the drama of the 2008 election in which Prop 8 was adopted, followed by the drama of the trial before Judge Walker, the Gill/Pedersen litigation - together with Windsor - is more important. The plaintiffs have a better chance of winning before the Supreme Court in the DoMA challenge and, paradoxically, if they do win, the ramifications could be much more significant. The latter point will depend on whether the Prop 8 case is decided on standing rather than on the merits or on grounds that apply only to California. In either of those situations, the direct precedent will be limited to one (albeit incredibly important) state. 
If the Supreme Court invalidates DoMA, however, same-sex married couples would gain access to federal benefits and programs, which generally speaking are far more important than state law benefits. Moreover, assuming that their marriage was legal in the state where it was performed, they would be eligible for federal benefits no matter where in the U.S. they currently lived. Their local state of residence might deny them recognition for state law purposes, but the longstanding previous policy that recognition for federal law purposes depended on whether the marriage was legal where performed (the place of celebration rule) would be reinstated. 
Many gay couples who would choose to marry see little point in doing so when it would not change their status under federal law.  Eliminating DoMA would transform the legal landscape.


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