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Friday, January 14, 2011

Daniel, You're A Hero! (But Don't Ask for Federal Benefits)

Yesterday the Obama Administration's Department of Justice submitted its appeal brief in Gill v. Office of Personnel Management, otherwise known as the DOMA (Defense of Marriage Act) case (2). (Last August, Federal Judge Tauro ruled that DOMA Section 3, the part denying federal benefits to legally married same-sex couples, was unconstitutional.)

Two days ago President Obama publicly proclaimed Daniel Hernandez, an openly gay Arizonan, a hero for the role he played in saving Gabrielle Giffords' life. It is certainly a coincidence these events took place but a day apart; nonetheless the contrast between these two actions could not be more striking.

Unlike most other unmarried individuals in his state and across the country, Mr. Hernandez could not tomorrow decide to get married to his sweetheart, go down to the county courthouse and exchange vows. If he had the wherewithal, the best he and his fiance could do would be to travel some 1500 miles to Iowa or to a foreign land to plight their troths.

But Daniel was perfectly capable of making a split-second decision that ended up saving the life of a Congressperson.

Should Mr. Hernandez indeed get married, he would not be eligible to check the 'married' box on either his federal or state income tax return; nor would any agency of the federal government recognize his marriage for any legal purpose. Should he or his spouse die, the other would not be eligible for Social Security benefits when the time came. Should his spouse get sick, it would be unclear -- at best -- whether Mr. Hernandez had the authority to make life-critical decisions for him.

But Daniel was quite eligible to take a bullet from a deranged assassin had the scene played out just a bit differently. No one had to give him that authority.

Should Mr. Hernandez decide tomorrow that he wants to serve his country in its armed forces, he would still be denied that privilege -- politely but firmed turned away from any recruiting station because he has openly proclaimed that he is gay (1).

But Daniel was perfectly capable of acting coolly and professionally under intense pressure, making time and life-critical decisions -- qualities any sane officer would presumably be more than eager to have from a soldier under his command regardless of his or her sexual orientation.

Two days ago the President of the United States proclaimed this man a hero. And one day ago, the same President's administration submitted a detailed, finely honed argument to the Federal Courts that this man, currently a second class citizen, is and of a right ought to be kept that way.

So help us God.


(1) Yes, this policy will hopefully be changing within the year. Still, he would face the threat that the policy would be re-imposed.

(2) Gill v Office of Personnel Management case summary and timeline:

Dispute: Does the United States Government have a right to treat two people united in a same-sex marriage differently than two people united in an opposite-sex marriage? Or does the Defense of Marriage Act, which restricts the definition of marriage for federal purposes to one man and one woman, violate the constitution's equal protection guarantees?

Decision: "As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."


  • March 3rd, 2009: Suit is filed.

  • July 8th, 2010: Judge Tauro issues ruling.

  • August 19, 2010: Judge Tauro issues a stay for 60 days to allow time for the government to appeal.

  • October 12, 2010: Government appeals decision to the First Circuit

  • December 14: 1st Circuit grants request to consolidate Gill and Massachusetts. v Department of Health and Human Services

  • January 13, 2011 Government's brief is submitted

  • March 1, 2011: Appellees' responses are due

  • April 4, 2011: Government's reply is due

  • April 21, 2011: Appellees' response to Government's reply is due

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