Thursday, May 21, 2009

Wall Street Journal: Lawsuit Seeks Same Rights to Federal Benefits Straight Couples Possess; Comparison With Another Federal DOMA Challenge

05/21/09 Wall Street Journal:

This article concerns a lawsuit that challenges Section 3 of the federal DOMA, providing federal government recognition of only those marriages that are between a man and a woman, even if a state chooses to recognize same-sex marriages. The lawsuit is Gill et al. v. Office of Personnel Management et al. (D. Mass. filed Mar. 3, 2009).

Not surprisingly, opponents of same-sex marriage are concerned about the case. The Alliance Defense Fund's senior counsel, Brian Raum, says that the "ramifications" are extraordinary, and the Wall Street Journal reports that

[s]ome conservatives fear that this lawsuit is part of a Trojan-horse campaign to make gay marriage a reality nationwide over the will of voters.

The Wall Street Journal does not report on another lawsuit that challenges the federal DOMA and Prop. 8 on equal protection and due process grounds - Smelt v. United States of America (C.D.Cal. filed Mar. 9, 2009). The Alliance Defense Fund has intervened in Smelt on behalf of ADF attorney Jim Cambell told the American Family News Network, a "Christian news service," that the case has "enormous significance." Does it?

I find that the Gill plaintiffs represent a far more credible challenge than the same-sex couple who are the Smelt plaintiffs. What distinguishes them? According to the Wall Street Journal,

Although DOMA has been unsuccessfully challenged before, the [Gill] lawsuit is different because of the number of plaintiffs, its sharp focus on the marital-benefits issue and because the plaintiffs all are legally married or survivors of legal marriages.

The Smelt lawsuit involves just two plaintiffs. It also lacks a "sharp focus" and instead overreaches. It alleges violations of the “Right to Life, Liberty and the Pursuit of Happiness” and the Ninth Amendment, and invokes the authority of Dick Cheney, who spoke in support of his lesbian daughter and her releationship.

The Wall Street Journal engaged comment from Lynn Wardle, a family law professor at Brigham Young University and opponent of same-sex marriage:

Mr. Wardle acknowledges that the "equality argument" advanced by [the Gill] plaintiffs "seems to have some legs." One solution to the benefits debate, he suggests, would be to redefine the rules of awarding the benefits so that committed gay couples are entitled to them, while still keeping a federal definition of traditional marriage intact.

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