Serious DOMA Challenge Under Way in MA

In October 2006, I posted about Dean Hara, the surviving spouse of openly gay Massachusetts Representative Gerry Studds, who was denied death benefits guaranteed to all other congressional spouses because the federal government does not recognize same-sex marriage. Hara and Studds were legally married in their home state of Massachusetts, which has legalized same-sex marriage, but the Defense of Marriage Act (DOMA) allows other states and the federal government to refuse to recognize the union.

At the time, I noted the case was a perfect example of why the "states' rights" argument about same-sex marriage is an intellectually bankrupt. Leaving each state, and the federal government, to recognize or not recognize same-sex marriage prevents even couples in states where same-sex marriage has been legalized from enjoying full equality, as the are yet denied federal benefits and are barred from relocating to any other state that doesn't recognize their marriage.

Well, now Dean Hara, along with fourteen other Massachusetts residents, is suing to challenge the constitutionality of DOMA.

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse's last name on a passport.

…Mary L. Bonauto, the civil rights lawyer for Gay & Lesbian Advocates & Defenders who was lead counsel in Goodridge v. Dept. of Public Health - the Massachusetts Supreme Judicial Court case in 2003 that legalized same-sex marriage in the United States for the first time - said the suit asks the court to strike down the Defense of Marriage Act because it targets gays and lesbians for discrimination.

"This is a case that should go to the Supreme Court and in all likelihood will go to the Supreme Court," she said.

If the plaintiffs win, she said, it would not extend same-sex marriage beyond Massachusetts and Connecticut, the two states where it is legal.

But it would dismantle a federal statute that affects more than 1,000 marriage-related benefits, and it would be a huge victory on symbolic and practical levels for supporters of same-sex marriage, according to legal specialists.

And it would almost certainly open the door for challenges in the 30 states that have passed constitutional amendments banning same-sex marriage, on the basis that the states recognize out-of-state opposite-sex marriages. Without DOMA, which grants states the right to refuse to recognize same-sex marriages performed in other states, states banning same-sex marriage are going to have a hard time arguing they're not discriminating when a straight couple who gets married in Massachusetts would have their union recognized but a gay couple who gets married in Massachusetts wouldn't.

It's one thing for a state to refuse to give out marriage licenses to same-sex couples or refuse to sanction legal marriage ceremonies between same-sex couples. But it's a whole other kettle of fish to deny the authenticity of a legal marriage performed in another state, but only for same-sex couples.

That's going to be a tough one to justify, not just ethically and logically, but constitutionally.

Opponents of marriage equality just need to give the fuck up already. This is like the losingest battle in the history of battles, and it's looking more losery every day. They ought to concede with whatever infinitesimal fragments of dignity they've got left and get off the damn tracks before the equality train runs them right the hell over. Idiots.