The Work

July 8, 2010 4:14 PM

Pro Bono 2010: The Other Gay Marriage Case

Posted by Victor Li

Update, 7/8/2010, 4:52 pm: The U.S. District Court in Massachusetts has handed down a decision in Gill v. Office of Personnel Management finding DOMA to be unconstitutional. Judge Joseph Tauro ruled that DOMA "violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment." Click here to read more about Judge Tauro's ruling from the Associated Press, via The New York Times;

Slow and steady wins the race. That's the way it was for school desegregation cases. Same with abortion rights. Now gay rights advocates hope that an incremental approach is the first step toward striking down the barriers that same-sex couples face when it comes to taking the vows of holy matrimony.

In Gill et al. v. Office of Personnel Management et al., lawyers from Foley Hoag, Sullivan & Worcester, and Jenner & Block have been working closely with the Gay & Lesbian Advocates & Defenders (GLAD), preparing a challenge to section 3 of the Defense of Marriage Act (DOMA). The plaintiffs, eight married couples and three widowers, allege that they have been damaged by the federal government's refusal to recognize their state-sanctioned marriage, forcing them to pay higher taxes and denying them health and survivor benefits guaranteed to other married couples. The plaintiffs moved for summary judgment in federal district court last May, and a decision is pending.

"We're not challenging all of DOMA, only section 3, which defines marriage as between a man and woman for federal purposes," says Paul Smith, a litigation partner at Jenner who argued the 2003 landmark case Lawrence v. Texas before the U.S. Supreme Court. "The federal government shouldn't have a marriage law. It's not part of what they do. The states should decide these issues."

Unlike its more celebrated counterpart, Perry v. Schwarzenegger in California, Gill focuses on a much narrower question relating to same-sex marriage: Can same-sex couples, who are lawfully married under Massachusetts law, receive federal recognition and benefits accorded to other married couples, such as the right to file joint tax returns?

"The primary issue with the tax plaintiffs is that they are married under Massachusetts law and have to file as married persons, but because of DOMA, they have to file federal returns as if they weren’t married," says Richard Jones, a tax partner at Sullivan, who along with fellow tax partner David Nagle serve as tax counsel on the case. "This creates a higher tax liability, federally, and it would be reduced if they were permitted to file a joint return."

Mary Bonauto of GLAD, who serves as lead counsel, says that while she would like to eventually see the entirety of DOMA stricken down or repealed, there is a clear benefit in pursuing a narrower strategy with Gill. "There are times when it's important to take things in pieces. This is one of those times," says Bonauto, who argued the case before the U.S. district court in May. "We brought an ‘as applied’ challenge where people were concretely harmed because of federal discrimination against these marriages. Over the last number of decades, the Supreme Court has clarified that it prefers 'as applied' challenged over facial challenges. That wasn’t difficult for us to do because DOMA is harming so many people."

Bonauto emphasizes that her group isn’t trying to dictate marriage policy for the country. "This is not a marriage case. If we win, it wouldn't result in any new marriages. It's a case where people are already married and they're being treated differently by the federal government. It's about equal protection," says Bonauto. "When it comes to the U.S. code and how the federal government treats married people, there is no justification for denying equal taxation, equal Social Security benefits and equal federal retiree protections just because it's a same-sex marriage."

The government agrees with the plaintiffs that DOMA should be repealed. However, that doesn't mean that it’s rolling over in this case. "The courts have made clear, however, that there is no fundamental right to federal benefits; thus, there is necessarily no fundamental right to marriage-based benefits," said the government in its motion for summary judgment. Additionally, the government maintained that gays are not a “suspect class” and argued that the courts should apply the deferential standard of rational basis when reviewing the constitutionality of the law.

While the plaintiffs see this case as a possible curtain-raiser for other challenges in the years ahead, it's ultimately all about their clients. "They have to falsely represent that they're single, and they also have to declare the state benefits as income," says Claire Laporte, a patent litigation partner for Foley who serves as pro bono coordinator at the firm. "The law recognizes that a major social support for people are spouse-to-spouse benefits. But we refuse to recognize that for same-sex couples. It’s demeaning, it's contradictory, and it's confusing."

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