Two new lawsuits were filed Tuesday in federal courts in Connecticut and New York on behalf of gay and lesbian couples in four states, challenging the 1996 Defense of Marriage Act (DOMA) that denies federal benefits to married gay couples.
Both of these cases follow similar litigation in Massachusetts, where a federal district judge ruled last summer that DOMA violates the federal Constitution.
Emboldened by that ruling, the American Civil Liberties Union (ACLU) and the Gay and Lesbian Advocates and Defenders (GLAD) are headed back to court with two new challenges while the Justice Department prepares to appeal the earlier decision.
Pedersen et al. v. Office of Personnel Management
In the first case, GLAD has filed its second major, multi-plaintiff lawsuit challenging the constitutionality of the DOMA and the government’s denial of protections and responsibilities to married gay and lesbian couples.
This new action specifically addresses married couples in Connecticut, Vermont, and New Hampshire, and comes on the heels of the Massachusetts ruling that found that Section 3 of the Defense of Marriage Act violated the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
In that suit, Gill et al. v. Office of Personnel Management, also filed by GLAD, the Plaintiffs argued that DOMA constitutes a “classic equal protection” violation, by taking one class of married people in Massachusetts and dividing it into two — one class gets federal benefits, and the other does not.
In Pedersen et al. v. Office of Personnel Management, filed Tuesday in Federal District Court in Connecticut, GLAD represents five married same-sex couples and one widower who have all been denied federal rights and protections simply because they are, or were, married to a person of the same sex.
The suit addresses DOMA’s denial of marriages in connection with federal employees and retirees benefits programs, Social Security benefits, survivor benefits under federal pension laws, work leave to care for a spouse under the Family Medical Leave Act, and state retiree health insurance plans that are controlled by federal tax law.
The current plaintiffs in Pedersen v. OPM are:
Joanne Pedersen, 57, and Ann Meitzen, 60, of Connecticut, together 12 years, married in 2008. Pedersen, a retiree from the Department of Naval Intelligence, is unable to add Meitzen, who has serious and chronic lung conditions, on her health insurance plan.
Jerry Passaro, 45, of Connecticut, married in 2008 to Tom Buckholz, his partner of 13 years. Buckholz died two months later of lymphoma. While still grieving, Passaro discovered that because of DOMA, Buckholz’s employer could not provide him survivor benefits on his pension. He has also been denied Social Security death benefits.
Raquel Ardin, 56, and Lynda DeForge, 54, of Vermont, together more than 30 years, married in 2009. DeForge, a postal employee, was denied family medical leave to care for Ardin, who needs regular and painful injections into her neck because of a military service-connected injury. Lynda could not use FMLA to care for Raquel after knee surgery this year.
Janet Geller, 64, and Jo Marquis, 70, of New Hampshire, together 31 years, married May 2010. Both are retired schoolteachers. Geller has been unable to receive a health benefit from Marquis’ retiree plan because of DOMA.
Two other couples will soon be added to the case who have paid additional federal income taxes because they cannot file a joint federal tax return as a married couple; they will join the suit once they are officially turned down for refunds from the IRS. They are:
Suzanne, 39, and Geraldine Artis, 40, of Connecticut, together 17 years, married in 2009. They have three school-aged sons. Suzanne is a school librarian. Geraldine, a teacher by profession, has recently undergone three back surgeries and is unable to work.
Bradley Kleinerman, 47, and James “Flint” Gehre, 44, of Connecticut, together 19 years, married in 2009. They have three sons that they adopted after serving as foster parents. Flint, a former police officer and teacher, is now a stay-at-home dad, while Brad works in human resources.
As with the earlier case in Massachusetts, GLAD argues that DOMA Section 3 violates the federal constitutional guarantee of equal protection, and is an “unprecedented intrusion by the federal government into the law of marriage, always considered the province of the states.”
Copy of the complaint, Pedersen et al. v. Office of Personnel Management, here (PDF).
Windsor v. the United States of America
In the second suit, filed Tuesday in U.S. District Court for the Southern District of New York, the ACLU is also challenging the constitutionality of DOMA.
When Spyer died in 2009, the federal government refused to recognize their marriage and taxed Windsor’s inheritance from Spyer as though they were strangers.
Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. Because of DOMA, the federal government refuses to treat married same-sex couples, like Windsor and Spyer, the same way as other married couples.
Similar to the suits filed by GLAD, the ACLU charges that DOMA infringes on the equal protection principles of the Fifth Amendment to the U.S. Constitution by allowing the federal government to pick and choose which marriages it will recognize for federal purposes, when it otherwise leaves that question entirely up to the states.
(Windsor and Spyer were the subjects of a 2009 documentary film, “Edie & Thea: A Very Long Engagement.”)
The Defense of Marriage Act was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and signed into law by President Bill Clinton on September 21, 1996.
DOMA Section 3, now codified at 1 U.S.C. section 7, limits the marriages the federal government will respect to those between a man and a woman. Section 2 of DOMA — not at issue in the lawsuits — allows states to establish public policies about what marriages they will and will not respect.