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Friday, January 21, 2011

Judge: LGBT Couples Can Sue for Exclusion from Spousal Health Plan

By Steve Weinstein -
Claudia Center (l.) receiving an award
Claudia Center (l.) receiving an award
While the Obama Administration waffles or even defends the much-reviled Defense of Marriage Act, individual court cases continue to make inroads against the federal ban on gay marriage.

In the latest salvo, a federal judge in Oakland, Calif., ruled that California state employees can sue for discrimination over the federal government’s exclusion of their spouses from long-term health-care programs.

As reported in the San Francisco Chronicle, U.S. District Judge Claudia Wilken denied the Obama Administration’s request to dismiss a suit and "nd signaled that she is likely to overturn provisions of the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples."

This follows two separate organizations taking on DOMA in the Northeast last fall.

The Gay and Lesbian Advocates and Defenders (GLAD) filed a federal lawsuit in Connecticut challenging DOMA’s Section 3, which defines ’’marriage’’ and ’’spouse’’ in federal law as being limited only to opposite-sex couples. The plaintiffs include couples and a widower from three New England states with marriage equality: Connecticut, New Hampshire and Vermont.

In New York City, the American Civil Liberties Union and a private law firm working pro bono filed a similar federal lawsuit on behalf of a lesbian widow who was forced to pay a $350,000 estate bill because of the federal government’s refusal to recognize her marriage.

The Obama Administration has been criticized for having its Justice Department defend DOMA, but the department has argued that its hands are tied; as long as it is the law of the land, the Justice Department has a statutory requirement to defend it.

But the Oakland judge said the 1996 law was wrong by "robbing states of the power to allow same-sex civil marriages that will be recognized under federal law. Marriage has never been contingent on having children," she added, in a pointed allusion to arguments made across the bay in attacking California’s Proposition 8.

A previous decision in Massachusetts also struck down provisions of DOMA. The ruling by U.S. Disctrict Judge Vaughn Walker in San Francisco against Prop. 8, a 2008 referendum that forbade gay marriage in California, also struck at the heart of DOMA.

Wilken’s decision only argued against the restrictive nature of health-care for gay spouses. Nevertheless, it "gives a pretty clear direction as to where she’s going," said Claudia Center, the lawyer representing three employees of the University of California-San Francisco, the plaintiffs.

The California Public Employees’ Retirement System has refused to enroll gay spouses in a federally approved long-term care plan -- the direct impetus for the lawsuit. The state has argued that DOMA denies federal tax benefits to states that cover same-sex couples’ spouses.
EDGE Editor-in-Chief Steve Weinstein has been a regular correspondent for the International Herald Tribune, the Advocate, the Village Voice and Out. He has been covering the AIDS crisis since the early ’80s, when he began his career. He is the author of "The Q Guide to Fire Island" (Alyson, 2007). 

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