The Defense of Marriage Act is headed to the Supreme Court. Filed on March 3, a lawsuit filed by a Bridgewater, Massachussets couple, challenges section 3 of 1996 federal DOMA that defined marriage to be union of a man and woman for all federal laws purposes, rules and regulations, which is understood to render same-sex couples as ineligible for federal benefits.
In an article from Wicked Local Bridgewater, "Preeminent Constitutional law scholar and Harvard Law Professor Laurence Tribe said it’s always difficult to predict which cases will end up before the U.S. Supreme Court. But, he said, there’s a good chance this case, Gill et al. v. Office of Personnel Management et al., could eventually be heard by the highest court in the land. He said the Supreme Court is likely nowhere near ready to declare a right of same-sex couples to marry under the U.S. Constitution."
Rather, the case brings up the issue of the same-sex couples who lawfully married under state law can be denied the federal benefits of marriages with a man and a woman receive based just on being the same gender.
Gay and Lesbian Advocates & Defenders (GLAD) filed the lawsuit representing eight same-sex couples who married and three surviving spouses. All of those represented are from Massachusetts, including Nancy Gill and Marcelle Letourneau of Bridgewater. Everyone involved was denied legal protections or federal benefits based on DOMA.
GLAD’s lawsuit says denying benefits means “treating similarly situated people differently” violating the “right of equal protection secured by the Fifth Amendment of the Constitution of the United States.” Tribe said for a long time the Supreme Court has held that “the requirements of equality and equal opportunity imposed on the states through the equal protection clause of the Fourteenth Amendment are identically imposed on the federal government through the due process clause of the Fifth Amendment." GLAD also uses a state rights argument.
The lawsuit also says that historically, marriage has been the province of states, and not so much the federal government. However, DOMA strays from that routine in a way that is unprecedented. Tribe said the federal government has historically given states wide latitude in the area of marriage even on controversial points. As an example, certain states permit first cousins to get married, in others it is illegal. In both situations, “the federal government absorbs the state’s definition,” according to Tribe.
With the exception of DOMA as a requirement, Congress turns to states for determining marriage eligibility, said GLAD Director of Public Affairs Carisa Cunningham.
Massachusetts Family Institute President Kris Mineau released a statement emphasizing that Congress passed DOMA “by overwhelming, bipartisan majorities” also saying that “Americans overwhelmingly believe marriage to be the union of one man and one woman.”
Tribe said there it is not possible to predict the case's outcome with any certainty in the event it does reach the U.S. Supreme Court. He thinks there is a “very good chance” the plaintiffs could succeed in a five-four ruling, with a swing vote being Justice Anthony Kennedy. “A court could conclude denial of equal treatment is unjustified,” despite a court being unprepared to verify the right to marriage of same-sex couples, Tribe added.
