DARING TEST CASE FOR MARRIAGE

THE WASHINGTON POST
By Ruth Marcus
Wednesday, March 4, 2009

As a U.S. senator, Barack Obama co-sponsored legislation to treat same-sex couples more equitably for tax purposes and provide benefits for domestic partners of federal employees.

As a presidential candidate, Obama urged full repeal of the Defense of Marriage Act (DOMA), which, among its odious provisions, bars federal recognition of same-sex marriages. "Federal law," he said, "should not discriminate in any way against gay and lesbian couples."

Obama's words are about to be put to the test. A lawsuit filed in federal court in Boston yesterday challenges the constitutionality of DOMA when it comes to federal treatment of same-sex couples married in Massachusetts.

Section 3 of the act, shamefully signed by President Clinton in 1996, provides that in "determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation . . . the word 'marriage' means only a legal union between one man and one woman as husband and wife."

The lawsuit, brought by the Gay and Lesbian Advocates and Defenders (GLAD), argues that Section 3 violates the Constitution's equal protection clause by treating same-sex couples who are legally married under state law differently from heterosexual married couples.

It challenges, among other things, denying Social Security survivor benefits to a surviving spouse; barring a married couple from filing joint federal income tax returns, a status that would save couples thousands in taxes; and refusing to let a federal employee add her spouse to her health benefits plan.

The GLAD lawsuit argues that Congress has traditionally deferred to states in regulating marriage. In any event, it says, the reasons lawmakers set out for passing DOMA -- to advance "the government's interest in defending and nurturing the institution of traditional heterosexual marriage . . . defending traditional notions of morality . . . (and) preserving scarce government resources" -- cannot justify discriminating against same-sex couples.

"Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex," the suit says.

The lawsuit is at once restrained and daring. Its claims are inevitable, obvious -- and potentially revolutionary. It presents a legal conundrum -- and could become a throbbing political headache -- for the Obama administration.

The suit is restrained in the sense that it does not ask the federal government to do anything more than respect state decisions about marriage. If successful, it would affect only states that allow same-sex marriages (Massachusetts and Connecticut) or that recognize same-sex marriages performed elsewhere (New York).

It's daring because gay rights advocates have, for the most part, studiously avoided federal courts in recent years. While pressing marriage at the state court level, gay rights groups have been leery of bringing a federal claim that could create a bad precedent from a conservative-dominated court.

But with more than 1,100 federal laws and regulations that grant benefits or make other distinctions based on marital status, it was unavoidable that such a challenge would come once states started to recognize same-sex marriage; hence the inevitable and obvious part.

The resolution of this case, however, is likely to have ramifications far beyond the discrete questions about Social Security benefits or tax filing status, which is what makes it potentially revolutionary and risky. The great unknown of constitutional law is the degree to which guarantees of due process and equal protection extend to gay rights. How courts address the relatively limited question at issue here could shape the broader contours of the law in this area for years -- for better or for worse.

For instance, if denying these benefits is unconstitutional, is it also unconstitutional to refuse to allow same-sex couples to marry or to relegate them to the separate-but-equal status of civil unions? I'd say yes, but I doubt the Supreme Court would see it that way. And the risk is creating bad law that would bind future courts.

Speaking of binding: Even though candidate Obama supported repeal of DOMA, the Justice Department is generally obligated to defend the constitutionality of a statute. Politically, the Obama Justice Department is in a dicey spot: It hasn't shown much appetite for riling social conservatives, yet defending the law would provoke a firestorm from the left.

In my view, the plaintiffs in this case have it right, on policy and law. I'm cheering them on -- but I'm also biting my nails.

marcusr@washpost.com