The House of Representatives has failed to defend its federal marriage law, and it should be thrown out, attorneys for six gay couples and a gay widower said in recent court papers.
Because of the federal Defense of Marriage Act (DOMA), the gay plaintiffs have all been mistreated and denied federal benefits given to other married couples, said Mary L. Bonauto and her colleagues at the Gay and Lesbian Advocates and Defenders (GLAD) in briefs filed in U.S. District Court for the District of Connecticut.
The DOMA defense lawyers are missing the point when they continue to talk about whether same-sex marriage is allowable or a good or bad idea, Ms. Bonauto and her colleagues said. That "is not the issue," they said.
Congress "does not get to make" a decision on who is married and what marriage means, and in any case, "the plaintiffs are already married," they said. "This case should not be a difficult one," they added: DOMA should be "struck down."
The GLAD court papers, filed Sept. 14, are in response to briefs from Bancroft PLLC lawyer Paul D. Clement and his colleagues, who are representing the Bipartisan Legal Advisory Group of the House of Representatives.
The House argues that DOMA is constitutional and rational, and is asking U.S. District Court Judge Vanessa L. Bryant, a 2007 appointee of President Bush, to dismiss the lawsuit against it. Final responses are due Oct. 5.
Pedersen v. Office of Personnel Management is filed by Joanne Pedersen and Ann Meitzen of Connecticut, and a gay widower and other gay married couples from other New England states. All say DOMA blocked them from federal benefits, such as health insurance, Social Security death benefits and "married-couple" tax-filing status.
DOMA was enacted in 1996 in reaction to a Hawaii court ruling in favor of gay marriage. The law clarifies that, for purposes of federal law, marriage is only the union of one man and one woman. It also advises states that they do not have to recognize out-of-state gay unions.
GLAD lawyers and the House lawyers are facing off in another DOMA case, Gill v. Office of Personnel Management. U.S. District Court Judge Joseph L. Tauro, a 1972 appointee of President Nixon, ruled in 2010 that DOMA was unconstitutional, and the case was appealed to U.S. Court of Appeals for the 1st Circuit. The government's response in Gill is due Thursday.
Among the issues raised in these cases are whether gays and lesbians are a class of people deserving "heightened scrutiny" because of their sexual orientation, history of discrimination and "political powerlessness."
Gay parenting is also a contested matter: Lawyers defending DOMA say evidence on gay parenting has been overstated and misstated, while gay plaintiffs assert that studies overwhelmingly find that children raised by gays do as well as, or even better than, children raised by a mother and a father.
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