Federal Lawsuits Challenging Section 3
of the so-called “Defense of Marriage Act”
Legal Director John Lewis
(Updated 9 January 2012)
The so-called “Defense of Marriage Act” (DOMA) has 2 substantive sections:
Section 2 declares that no state must recognize another state’s marriages of lesbian and gay couples;
Section 3 bars the federal government from recognizing legal marriages of lesbian and gay couples.
Numerous lawsuits challenge Section 3 of DOMA, which denies legally married same-sex couples access to the 1,138 federal rights and responsibilities that come with marriage. On 7 December 2012, the United States Supreme Court announced that it will hear United States v. Windsor. The Court will hear oral argument at 10:00 am (EDT) on Wednesday, 27 March 2013 and will likely issue a decision in the case by the end of June 2013.
Significantly, the United States Justice Department decided not to defend DOMA in federal court because it believes DOMA is unconstitutional. The federal government continues to enforce section 3 of DOMA, pending resolution by the courts.
In light of the Justice Department’s decision, a committee of the United States House of Representatives, the so-called Bipartisan Legal Advisory Committee (BLAG), has intervened to defend DOMA in federal litigation. Although the group is called “bipartisan,” it has explained in legal filings that only the Republican members of the group favored defending DOMA.
In addition to the issue of whether DOMA’s exclusion of legally married same-sex couples from over 1,000 federal protections that all other married couples have violates the United States Constitution, the Supreme Court has asked the parties to address two other issues: 1) whether the Executive Branch’s agreement with the Second Circuit Federal Court of Appeal’s decision that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to hear the case; and 2) whether BLAG has standing in the case.
Various parties asked the United States Supreme Court to hear three other cases challenging the constitutionality of the so-called Defense of Marriage Act (DOMA). These cases are: 1) Gill v. Office of Personnel Management, consolidated with Massachusetts v. United States Department of Health and Human Services; 2) Golinski v. Office of Personnel Management; 3) Pedersen v. Office of Personnel Management. It appears that the Supreme Court is holding these cases pending the resolution of the Windsor case.
Here is a listing of federal cases challenging Section 3 of DOMA:
1. Windsor v. United States (No. 10-CV-8435 (S.D.N.Y.), on) – United States Supreme Court - Petition for Certiorari granted 7 December 2012 to review 2nd Circuit Federal Court of Appeals decision.
Plaintiff Edith Windsor is an 83 year old resident of New York, who legally married her same-sex partner of over 40 years, Thea, in Canada in 2007. The State of New York recognized their marriage, but the United States government did not. Sadly, Edith's wife, Thea, died in 2009. When Thea died, her estate was forced to pay $363,000 in estate taxes that would not have been assessed if Thea and Edith were not a lesbian couple.
On 6 June 2012, the District Court held that DOMA violated the United States Constitution and ruled in favor of plaintiff Windsor.
BLAG appealed the decision to the 2nd Circuit Federal Court of Appeals, and plaintiff Windsor asked for an expedited hearing of the case.
She is 83 years old and suffers from a chronic heart condition. She would like to see justice in her lifetime.
On 18 October 2012 the Second Circuit ruled in Windsor's favor and held that DOMA violated the United Sates Constitution. Significantly, the Court held that DOMA should be subject to "heightened scrutiny" and that it could not satisfy this test.
Read the 18 October 2012 Decision
On 7 December 2012 the United States Supreme Court announced that it will hear United States v. Windsor. The Court will hear oral argument at 10:00 am (EDT) on Wednesday, 27 March 2013 and will likely issue a decision in the case by the end of June 2013.
The American Civil Liberties Union (ACLU) represents plaintiff in Windsor. Click here for more information on this case.
2. Gill v. Office of Personnel Management (No. 09-10309 (D. Mass.), Nos. 10-2207 & 10-2214 (1st Cir.)), consolidated with Massachusetts v. United States Department of Health and Human Services (No. 09-11156 (D. Mass), No. 10-2204 (1st Cir.)) - Petition for Certiorari filed with United States Supreme Court, seeking review of 1st Circuit Decision.
Plaintiffs in Gill are legally married couples in Massachusetts, who have been denied federal benefits to which they would be entitled if they were not gay. The State of Massachusetts also brought a companion case to Gill.
On 8 July 2011, the Federal District Court in Massachusetts ruled Section 3 of DOMA unconstitutional in a summary judgment opinion. (699 F.Supp.2d 374 (D.Mass., 2010)). On 31 May 2012, the First Circuit Federal Court of Appeals affirmed the district court decision, holding that DOMA's exclusion of legally married same-sex couples from the federal rights and responsibilities that come with marriage violated the United States Constitution.
Various parties have asked the United States Supreme Court to hear the case, and it appears that the Court is holding the case, pending the resolution of the Windsor case, discussed above.
Gay & Lesbian Advocates & Defenders (GLAD) represents plaintiffs in Gill. Click here for more information on these cases.
3. Golinski v. Office of Personnel Management (No. 10-00257 (N.D. Cal.), on appeal, 9th Circuit Nos. 12-15388 and 12-15409) - Petition for Certiorari filed with United States Supreme Court, seeking review of district court decision.
Plaintiff Karen Golinski is a federal employee who seeks to enroll her legally married California same-sex spouse in the federal health insurance plan available to spouses of federal employees. The federal government refused to enroll Golinski’s wife in the plan, based on Section 3 of DOMA. Golinski would have been able to enroll her spouse for health insurance if she were not gay.
On 22 February 2012, the District Court held that DOMA is unconstitutional and that Golinski’s wife should receive health insurance through the federal government plan just like any other spouse. The court held that the DOMA should be held to “heightened scrutiny” under the Constitution, but that the law did not even have a “rational” basis for its adoption. It was based on indefensible disapproval of lesbian and gay people (whom the bill’s author termed “homosexual extremists,”) and unfounded assumptions about marriage and the ability of lesbian and gay people to be parents. In many ways, the court’s reasoning mirrored that of the Ninth Circuit in Perry v. Brown – that subjective moral disapproval of a minority group is not a valid basis for a law under our Constitution.
Read the 22 February 2012 Decision
The district court’s decision was appealed to the Ninth Circuit Federal Court of Appeals, which ordered expedited disposition of the case, and the case was briefed. 132 Members of the United States House of Representatives filed an amicus curiae (“friend of the court”) brief, arguing that section 3 of DOMA was unconstitutional.
Various parties have asked the United States Supreme Court to hear the case, even though the Ninth Circuit had not yet held oral argument or issued a decision in the case. It appears that the Supreme Court is holding the case, pending the resolution of the Windsor case, discussed above.
Lambda Legal Defense and Education Fund represents the plaintiff. Click here for more information on this case.
4. Pedersen v. Office of Personnel Management (No. 10-CV-1750 (D. Conn.)) - Petition for Certiorari filed with United States Supreme Court, seeking review of district court decision.
Plaintiffs are legally married couples in Connecticut, Vermont, and New Hampshire, who challenged DOMA because they are being denied federal benefits to which they would be entitled if they were not gay. The case was filed in November 2010.
On 31 July 2012, United States District Court Judge, Vanessa L. Bryant, a 2007 appointee of President George W. Bush, ruled in favor of plaintiffs and held in a very detailed and thorough decision that section 3 of DOMA violated the United States Constitution. The judge addressed (and rejected) every conceivable argument offered to defend DOMA and held that DOMA could not pass the most deferential standard of review, the "rational basis" test. The judge also stated that courts should apply "heightened scrutiny" to classifications based on sexual orientation.
Read the 31 July 2012 Decision
Various parties have asked the United States Supreme Court to hear the case even though the 2nd Circuit has not yet reviewed the district court's decision. It appears that the Supreme Court is holding the case, pending the resolution of the Windsor case, discussed above.
Gay & Lesbian Advocates & Defenders (GLAD) represents plaintiffs in Pedersen. Click here for more information on this case.
5. Dragovich, et al. v. Department of the Treasury, et al., (No. 10-1564 (N.D. Cal.), on appeal 9th Circuit Federal Court of Appeals)
This case is a class action lawsuit brought on behalf of California same-sex married couples and registered domestic partners who seek equal access to California’s long-term care insurance program for public employees and their families (CalPERS). Section 3 of DOMA currently precludes such access for same-sex married couples, and provisions of the Internal Revenue Code prohibit such access for domestic partners.
On 24 May 2012, the U.S. District Court ruled that section 3 of DOMA and the relevant Internal Revenue Code provisions were unconstitutional. Following closely the reasoning of the Ninth Circuit’s holding in Perry (the Prop. 8 case), the district court held that these laws were based on “anti-gay animus,” lacked any “rational basis,” and thus violated the equal protection guarantees of the United States Constitution. The court ordered the state to refrain from using these unconstitutional provisions of federal law to prevent California same-sex couples who are either married or in domestic partnerships from enrolling in the CalPERS long-term care plan. The court also directed the federal government not to disqualify the CalPERS pension plan from favorable tax treatment because the state was adhering to the court’s order.
BLAG has appealed the district court’s decision to the Ninth Circuit Federal Court of Appeals. The district court stayed (or put on hold implementation of) its order pending resolution of the case on appeal.
The Legal Aid Society – Employment Law Center represents plaintiffs. Click here for more information on this case.
6. McLaughlin v. Panetta, No. 1:11-cv-11905-RGS (District Court Massachusetts)
Plaintiffs are legally married current and former service members seeking equal recognition, benefits and family support for equal sacrifice and service in the U.S. Armed Forces. They want the armed services to recognize their families and seek the same family support and benefits for their same-sex spouses that the services and Department of Veterans Affairs provide to different-sex spouses.
The lawsuit challenges the constitutionality of DOMA, as well as provisions in Title 10, Title 32, and Title 38 of U.S. Code, which preclude the military from providing same-sex married couples with the same benefits and family support as their straight, married peers.
While gay military couples are now eligible for "member-designated" benefits such as group life insurance, missing member notification and hospital visitation rights, DOMA keeps health care coverage and housing allowances off limits. Base housing or housing allowances and health insurance can account for as much as 40 percent of a service member's compensation.
The case was filed in federal district court in Massachusetts, the same district in the 1st Circuit in which the Gill case was filed. The district court has stayed further action in McLaughlin, pending final resolution of Gill.
Click here for more information on this case.
7. Cooper-Harris v. Department of Veterans Affairs (District Court, Central District of California)
Plaintiff Tracey Cooper-Harris is a decorated military veteran with multiple schlerosis, who married her wife Maggie Cooper-Harris in California in 2008.
The Department of Veterans Affairs denied Cooper-Harris approximately $125 per month in disability payments she should be entitled to as a legally married person because the Department refused to recognize her marriage. If the Department recognized the Cooper-Harris’ marriage, Maggie would be also eligible for approximately $1,200 a month in benefits as a surviving spouse if Tracey were to die before Maggie and the couple would be eligible to be buried together in a veterans' cemetery.
The lawsuit challenges DOMA and particular laws that governs the Department of Veterans Affairs policy.
The Southern Poverty Law Center represents Cooper-Harris. Click here for more information on this case.
8. Cardona v. Department of Veterans Affairs (Court of Appeals for Veterans Claims)
Plaintiff Cardona is a disabled Navy veteran, who recently got legally married to her same-sex spouse in Connecticut. When Cardona applied for an increase in her monthly disability compensation because she was newly married, the Department of Veterans Affairs denied it because she and her spouse were a same-sex couple. Cardona appealed to the Court of Appeals for Veterans Claims, a special federal court in Washington that handles disputes over veterans benefits. That court’s decision could then be appealed to the Federal Circuit Court. The case challenges both specific provisions relating to veterans’ benefits and DOMA.
The Veterans Legal Services Clinic at Yale Law School represents Cardona. Click here for more information on this case.
9. Blesch v. Holder (No. CV12-1578 – E.D.N.Y.)
Plaintiffs are five lesbian and gay couples in bi-national relationships, who challenge Section 3 of DOMA’s prohibiting lesbian and gay American citizens from sponsoring their noncitizen spouses for green cards (i.e., lawful permanent residency). These couples would have be able to obtain lawful permanent residency for their noncitizen spouses if they were not gay. The couples are at constant risk of being forced apart or forced to leave the United States to stay together because of section 3 of DOMA. The case was filed 12 April 2012.
Click here for more information on this case.
10. Cozen O'Connor v. Tobits (Eastern District of Pennsylvania)
Jennifer Tobits and Sarah Ellyn Farley lived in Chicago and were married in Canada in 2006. Sarah Farley died in 2010. Farley’s parents petitioned the Illinois probate court to take over the administration of Ellyn’s estate, claiming that Tobits and Farley were not married and claiming that they, instead of Tobits as surviving spouse, were heirs to the estate. Farley’s parents also informed her employer, the Pennsylvania based law firm Cozen O’Connor, that because of DOMA they, and not Tobits, were entitled to Farley’s death benefits under the firm’s profit-sharing plan. Cozen O’Connor filed an action in the federal district court for the Eastern District of Pennsylvania to determine who should receive the benefits. Tobits argues that terms of the firm’s benefit plan make clear that she is entitled to benefits and that DOMA does not apply. Although the district court has not decided whether or not DOMA may even apply, it has asked the parties to brief the constitutionality of DOMA. The case has been argued, and the parties are awaiting a decision.
The National Center for Lesbian Rights represents Tobits. Click here for more information about this case.
11. Jane Roe and Jane Doe v. Empire Blue Cross Blue Shield and St. Joseph’s Medical Center (U.S. District Court, Southern District of New York)
This case is a class action brought by Jane Roe, who is an employee of St. Joseph’s Medical Center in New York, after the medical center’s health care plan administrator, Empire Blue Cross Blue Shield, denied coverage to her legally married spouse, Jane Doe, because Doe is a lesbian. The couple filed the case using pseudonyms because of fear or retaliation by the medical center.
St. Joseph’s Medical Center is a self-insured employer, thereby exempt from the New York State Marriage Equality Act. Thus, the center may employ federal law to discriminate against lesbian and gay couples in provision of health coverage to employees’ spouses because of section 3 of DOMA. Roe and Doe claim that section 3 of DOMA violates the United States Constitution, and consequently Blue Cross Blue Shield and the medical center may not deny Doe health coverage.
Plaintiffs bring the class action on behalf of all married gay and lesbian employees of the medical center and all married gay men and lesbians in New York, covered by Blue Cross Blue Shield, but denied spousal coverage by self-insured employers who choose to discriminate against lesbian and gay spouses of employees. The case was filed on 19 June 2012.
12. Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)
Plaintiff Dean Hara is the widower of former United States Congressman Gerry Studds, who was his legally married spouse in Massachusetts. Hara is a plaintiff in the Gill litigation who had 2 claims. Hara prevailed on one of his claims as part of the Gill litigation, ultimate resolution of which depends on final disposition of the Gill case (see above). Resolution of Hara’s second claim may depend on separate legal issues, now pending before the Federal Circuit. The Federal Circuit action has now been stayed pending resolution of the Gill case. If section 3 of DOMA is finally ruled unconstitutional in Gill, the Federal Circuit action will likely no longer be necessary.
Other Federal Lawsuits Relating to DOMA:
In Re Gene Douglas Bolas and Carlos A. Morales (United States Bankruptcy Court, Central District of California (Case No. 2:11-bk-17831 TD, Chapter 13).
On 13 June 2011, the United States Bankruptcy Court in Los Angeles -- in a decision signed by 20 bankruptcy judges -- held that section 3 of DOMA was unconstitutional in a bankruptcy case brought by a legally married California same-sex couple, Gene Douglas Bolas and Carlos A. Morales. In July 2011, the Department of Justice dismissed its appeal of the ruling, and the decision is now final. The Justice Department has notified bankruptcy courts that it will no longer seek to dismiss bankruptcy petitions filed jointly by debtors who are same-sex couples married under state law.
Bishop v. United States, No. 04-CV-848 (N.D. Oklahoma)
Lui v. Holder, No. 09-72068 (9th Cir.) & No. 2:11-cv-01267 (C.D. Cal.)
Revelis v. Napolitano(No. 1:11-CV-01991, Northern District Illinois)
Torres-Barragan v. Holder, No. 10-55768 (9th Cir.), consolidated with Nos. 08-73745 & 09-71226 for purposes of calendaring
Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir.), consolidated with No. 10-55768 for purposes of calendaring
