Legal News

The Latest Battle in the Same-Sex Marriage War

By Ashby Jones

To date, the more heated and visible battles over same-sex marriage have played out at the state level, either in courtrooms, at the ballot-box or in legislative halls.

But an interesting battle is now brewing at the federal level. The question is this: does the 1996 federal Defense of Marriage Act, which defines marriage as a union of one man and one woman, require the government to ignore same-sex marriage even if a state chooses to recognize them?

At stake is more than a simple federal acknowledgment: Only opposite-sex spouses are eligible for many federal benefits after the death of a spouse.

A lawsuit challenging DOMA is playing out in a Massachusetts federal court. Dean Hara, the widower to Gerry Studds (pictured, right), the first openly gay U.S. congressman — who died in 2006 — along with several others, is challenging the portion of DOMA that keeps them from getting federal marital benefits. Click here for the WSJ story.

A victory for Hara and his cohorts would increase the financial benefits of gay marriage, which could help spread the practice. Though legal experts say courts would be reluctant to invalidate laws set by Congress, supporters hope a victory will put pressure on Congress to repeal DOMA, a rescission that President Obama says he favors even though he opposes gay marriage.

On the other hand, a victory for the government would strengthen the hand of gay-marriage opponents, who view the law as the last line of defense. Some conservatives fear that this lawsuit is part of a Trojan-horse campaign to make gay marriage a reality nationwide over the will of voters. They see the lawsuit as an important one. “It’s very significant because the ramifications are extraordinary,” says Brian Raum, an attorney at the conservative Alliance Defense Fund.

The Department of Justice declined to comment on the litigation, and hasn’t yet responded in court. Lawyers on both sides say President Obama’s position on DOMA doesn’t mean his Justice Department won’t vigorously defend the lawsuit.

“It’s far from a slam dunk, but it’s a powerful and plausible case,” according to Laurence Tribe, a Harvard Law School professor who says he’s sympathetic to the plaintiffs but isn’t involved in the lawsuit. “It’s a surgical attack on DOMA rather than trying to hit it with a bludgeon.”

Full post as published by Law Blog - WSJ.com on May 21, 2009 (boomark / email).