Recent challenges to DOMA – the end is near?

McLaughlin family

In the words of President Obama, addressing the LGBT community in June 2011, “I told you I was against the Defense — so-called Defense of Marriage Act. I’ve long supported efforts to pass a repeal through Congress. And until we reach that day, my administration is no longer defending DOMA in the courts. The law is discriminatory. It violates the Constitution. It’s time for us to bring it to an end.”

While our President took a firm stance on constitutionality of DOMA, the House Bipartisan Legal Advisory Group soon announced that the House would defend the Defense of Marriage Act.

Under DOMA, enacted in 1996, states aren’t legally required to recognize same-sex marriages that might be legal in other states or jurisdictions. Section 3 of DOMA, which prevents the federal government from recognizing the validity of same-sex marriages, has been found unconstitutional in two Massachusetts court cases: Gill et al. v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass., 2010)  and Massachusetts v. United States Department of Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 2010) . However, the District Court rulings are presently under appeal.

Recently, ACLU and the law firm Paul, Weiss, Rifkind, Wharton & Garrison filed Windsor v. United States brief in the US District Court for the Southern District of New York. In July, 2011, New York Attorney General filed a brief supporting Windsor’s claim and challenging constitutionality of Section 3 of DOMA. Windsor and Spyer legally entered into a same-sex marriage in 2007 in Canada. Edith S. Windsor, the widow of Thea C. Spyer, ended up paying $363,000 in federal taxes on her inheritance from Spyer’s estate. If federal law accorded their marriage the same status as opposite-sex marriages, she would have paid no tax. The case is presently pending before the District Court for the Southern District of New York.

The newest challenge to DOMA – McLaughlin v. Panetta – was filed on Oct. 27, 2011 in Massachusetts District Court. Massachusetts Army National Guard Maj. Shannon McLaughlin, 41, and her wife, Casey, 34 (photograph on the right), are serving as lead plaintiffs in the suit, which includes five other troops and two career Army and Navy veterans. The McLaughlins married in December 2009 and have 10-month old twins. Although Shannon pays for the twins’ health care through her military benefits, Casey, a former high school history teacher who gave birth to the twins, pays about $700 a month for a separate health-care account. The couple seeks the same recognition, benefits and support, as are enjoyed by every straight married couple. For a complete article on McLaughlin suit, click here.

Although the Obama administration intends to continue enforcing the law until it is either repealed by Congress or finally declared unconstitutional in court, the change may now be closer than ever.