A lawyer for 17 gays and lesbians who wed in Massachusetts urged a federal judge today to strike down a 1996 federal law that defines marriage as a union strictly between a man and a woman, calling it an unconstitutional intrusion on a matter previously left to states.
Mary L. Bonauto, the lawyer for Gay & Lesbian Advocates and Defenders (GLAD), said that until Congress passed the Defense of Marriage Act, the federal government always let states decide who was legally married. GLAD led the legal fight that convinced the Supreme Judicial Court to declare same-sex marriages in Massachusetts legal under the state's constitution.
"All the federal government has ever cared about is that the person is married at the state level," Bonauto argued before US District Court Judge Joseph L. Tauro in Boston. The federal law is known by the acronym, DOMA. "For the first time ever, DOMA departed from that."
As a result, the federal government treats the 17 plaintiffs -- seven gay and lesbian married couples and three men whose husbands have died -- as second-class citizens, she said.
The plaintiffs are barred from numerous benefits that same-sex couples routinely obtain, including health insurance for federal employees, retirement and survivor benefits under the Social Security Act, and the ability to file joint federal income tax returns.
W. Scott Simpson, a Justice Department lawyer defending the government, said the Obama administration agrees the federal law is discriminatory and supports its repeal.
But Simpson said the department is obliged to follow the long-standing practice of defending federal laws signed by previous presidents as long as the statutes are constitutional, which, he contends, the Defense of Marriage Act is.
He said Congress had a legitimate rationale to pass the federal law 14 years ago, given that some states were beginning to consider legalizing same-sex marriage. DOMA, he said, maintains the status quo -- marriage reserved exclusively for heterosexuals -- and prevented the federal government from having to keep track of which states had legalized gay marriages and which had not.
'"This presidential administration disagrees with DOMA as a matter of policy," he said, in a courtroom overflowing with gay marriage supporters, including the 17 plaintiffs, who were allowed to sit in the jury box. "But that does not affect its constitutionality."
The lawsuit is widely considered the first serious challenge to DOMA and, regardless of how Tauro rules, is expected to ultimately end up before the Supreme Court. The federal government has asked Tauro to dismiss the complaint, while the plaintiffs have asked the judge to rule in their favor on summary judgment.
Tauro, who interrupted both sides with numerous questions, said he would take the matter under advisement.
The plaintiffs include Dean T. Hara, the husband of the late retired Congressman Gerry E. Studds. Outside the courthouse, Hara said the US was "not a country built on double standards," and he rejected government arguments in favor of "incrementalism."
"I think that's the equivalent of going to Rosa Parks and saying, 'You can move up one row of the bus at a time and eventually you'll get to the front,'" said Hara, a 52-year-old Boston financial adviser.
If the plaintiffs win, it will not extend same-sex marriage beyond the states where it is legal. Nor would it require other states to recognize same-sex marriages carried out in states where it is legal. But it would dismantle a federal statute that affects more than 1,000 marriage-related benefits and would be a huge symbolic victory for supporters of same-sex marriage.
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