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State AG’s office seeks reversal of US marriage act

By Jonathan Saltzman
Globe Staff / May 27, 2010

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A lawyer for the state attorney general’s office urged a judge yesterday to strike down the 1996 federal law that defines marriage as a union exclusively between a man and woman, marking the second time this month the judge has heard arguments over whether the statute is constitutional.

Assistant Attorney General Maura T. Healey told US District Court Judge Joseph L. Tauro in Boston that the Defense of Marriage Act “forces Massachusetts to engage in a kind of invidious discrimination’’ by depriving same-sex married couples of benefits received by heterosexual couples or risk losing federal aid.

As an example, she said, the state could lose millions in funding if it allows a Vietnam War veteran and his husband to be buried in a veterans’ cemetery in Winchendon, as the Westminster couple wants. The Army veteran, Darrel Hopkins, 65, and his husband, Tom Casey Hopkins, 58, who were among the spectators in the packed courtroom, have received approval from the state Department of Veterans’ Services to be buried in the cemetery. But, Healey said, the federal government has “told us clearly and explicitly’’ that the Defense of Marriage Act forbids it.

Christopher R. Hall, a lawyer for the Justice Department from Washington, repeated statements made by another attorney from his department before Tauro on May 6 that President Obama opposes the 1996 law, agrees it is discriminatory, and supports its repeal.

Nonetheless, Hall said, the administration is following the longstanding practice of defending federal laws signed by previous presidents as long as the statutes are constitutional, which, Hall asserted, the law is.

Hall said Congress and President Clinton, who signed the bill into law, had a legitimate interest in preserving marriage as a heterosexual institution 14 years ago. And it is not a foregone conclusion, he said, that the federal government would withhold funding if Massachusetts allowed gay married couples to be buried in veterans’ cemeteries.

Tauro, who is considering a companion lawsuit by 17 gays and lesbians who wed in Massachusetts but are ineligible for numerous federal benefits under the Defense of Marriage Act, appeared skeptical of some of Hall’s arguments.

The judge drew laughter when he questioned whether the federal government had a valid interest in “perpetuating heterosexuality in the graveyard,’’ and he dismissed Hall’s argument that the federal law maintained the status quo for marriage in America. In fact, said Tauro, it disrupted the status quo because marriage had been a matter left to the states “since the beginning of time.’’

The Justice Department and lawyers from the office of Attorney General Martha Coakley, who was among the spectators, have each asked Tauro to rule in their favor without the case going to trial. As in the case of the arguments three weeks ago in the suit by the 17 gays and lesbians, Tauro said he would take the matter under advisement and issue a ruling soon.

Gay & Lesbian Advocates & Defenders, a Boston nonprofit, is representing the plaintiffs in the suit argued earlier this month. GLAD helped win the lawsuit that resulted in the landmark 2003 decision by the Supreme Judicial Court legalizing gay marriage in Massachusetts.

Andrew Koppelman, a Northwestern University law professor and an authority on same-sex marriage laws, said the plaintiffs in both suits before Tauro have made strong arguments that could prompt the judge to strike down the law.

“Given how similar the theories are, it would be very strange if the state won and GLAD lost, or vice versa, because they’re both relying on the same equal-protection claim,’’ he said

The 17 gays and lesbians contend they are treated as second-class citizens as a result of the federal law, ineligible for numerous federal benefits available to married heterosexuals, including health insurance for spouses of federal employees, retirement and survivor benefits under the Social Security Act, and the ability to file joint federal income tax returns.

Coakley’s suit homes in on instances in which the state risks losing federal funding unless it treats same-sex couples differently from heterosexual couples. In addition to funding for the Department of Veterans’ Services, Coakley says the state risks losing millions for MassHealth, the Medicaid program that insures low-income residents, if Massachusetts provides health benefits to same-sex couples.

After yesterday’s arguments, the Hopkinses said that Darrel Hopkins served in the Army and then worked for decades for the Internal Revenue Service.

They have five grown children and have been a couple for 25 years and are upset that the federal law could prevent them from being buried together at the Veterans’ Memorial Cemetery, particularly given Darrel’s many years of service to the government.

“It’s the same hypocrisy we’ve been living with for the past 25 years,’’ Darrel Hopkins said.

Saltzman can be reached at jsaltzman@globe.com.

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