Vermont Freedom to Marry

First Circuit Court of Appeals Finds DOMA Unconstitutional

 

Holds Same-Sex Married Couples Can’t Be Denied Federal Benefits

Today, a three judge panel of the First Circuit Court of Appeals unanimously held that Section 3 of the federal Defense of Marriage Act (“DOMA”) – which defines marriage as between a man and a woman - is unconstitutional.

On appeal were Gill v. Office of Personnel Management, brought by seven same-sex couples married in Massachusetts and three surviving spouses of such marriages seeking to prevent federal agencies from enforcing DOMA, and a companion case, Massachusetts v. Office of Personnel Management, brought by the state of Massachusetts.

In today’s decision, the Court found that this Section 3 violated the Equal Protection Clause because:

[T]he combined effect of DOMA's restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. For those married same-sex couples of which one partner is in federal service, the other cannot take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.

While this decision, which will serve as precedent for future decisions, is a victory for the marriage equality movement, it does not go as far as it could have.  For example, the Court declined to find evidence of Congressional animosity towards gays as a sufficient basis for invalidating DOMA.  Furthermore, despite President Obama’s and the Department of Justice’s opinion that discrimination on the basis of sexual orientation should be subject to a heightened scrutiny (which places the burden on the government to show that the law is constitutional) this Court declined to apply such a heightened scrutiny.

Nevertheless, the Court did reject the tired and baseless argument that DOMA somehow protects opposite-sex marriage:

Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage.

And, the Court ultimately found that Section 3 of DOMA does not promote any legitimate federal interest and must therefore be invalidated.

Read the whole decision here.

This decision brings us another step closer to the end of DOMA and to full marriage equality for all Vermonters.

Another Court Finds DOMA Unconstitutional, Expands Finding to Protect Domestic Partners


Another federal district court judge has held that the Defense of Marriage Act (DOMA) is unconstitutional.

Judge Claudia Wilken, of the U.S. District Court for the Northern District of California, held yesterday that both DOMA and a federal tax provision unconstitutionally hinder same-sex married couples’ and domestic partners’ ability to participate in the long-term care plan offered by the California Public Employees Retirement System (CalPERS).

Judge Wilken’s opinion is the most expansive to date on this issue because it also holds that domestic partners must be given equal treatment.  In addition to finding that DOMA’s definition of “marriage” and “spouse” violates the equal protection rights of same-sex spouses, Judge Wilken goes further to find that an Internal Revenue Code provision “violates the equal protection rights of Plaintiff registered domestic partners.”

This class-action suit was initiated by California public employees and their same-sex spouses and registered domestic partners who were denied CalPERS benefits because, even if CalPERS wanted to give same-sex married couples and domestic partners equal access to its benefits, doing so would disqualify the state program from receiving favorable tax-treatment.

Click here to read the full court opinion.

Focusing on DOMA’s inherent hostility towards gays and lesbians, Judge Wilken concluded that DOMA is in no way rationally related to a legitimate government interest and that 
“Singling out same-sex spouses for exclusion from the federal definition of marriage amounts to a bare expression of animus on the basis of sexual orientation.”

It is encouraging to have a growing group of federal judges agree that DOMA violates the equal protection rights of same-sex spouses (and, now, registered domestic partners). Though our work will continue until DOMA is decisively overturned, each important step forward--like Judge Wilken's ruling--brings us closer to the goal of full federal equality for same-sex couples and their families.

Leahy, Sanders, & Welch Announce Lifting Of The Threat Of Deportation That Hovered Over Same-Sex Couple In Dummerston

Vermont Freedom to Marry applauds Vermont’s Congressional delegation for achieving what must be huge relief for a Vermont married couple, Takako Ueda and Frances Herbert. For now, Takako, who is legally married to Frances, will be able to remain in Vermont without the imminent threat of deportation.

Please see below for the full statement from our Congressmen.

We thank Senator Patrick Leahy, Senator Bernie Sanders, and Representative Peter Welch, for working to keep legally married bi-national families together.  They had already signed on to a letter urging Department of Homeland Security Secretary Janet Napolitano and the U.S. Citizenship and Immigration Services to support relief from potential deportation for bi-national same-sex spouses who have applied for green cards.
_________________________________________

Leahy, Sanders And Welch
Announce Lifting Of The Threat Of Deportation
That Hovered Over Vermont Same-Sex Couple

WASHINGTON, May 22 – Sens. Patrick Leahy (D-Vt.) and Bernie Sanders (I-Vt.), and Rep. Peter Welch (D-Vt.) today announced a breakthrough that will bring certainty and stability for now to the legal status of a Japanese-born woman, Takako Ueda, who is married under Vermont law to an American citizen, Frances Herbert. The couple live in Dummerston, Vt.

The bi-national same-sex couple has been together for more than a decade and were legally married in Vermont last year, but U.S. Citizenship and Immigration Services had denied the Japanese-born Ms. Ueda a spousal permanent resident card, also known as a green card. Under the federal Defense of Marriage Act, their marriage is not recognized at the federal level.

Leahy, Sanders and Welch announced that the citizenship agency used its discretion to grant “deferred action” to Ms. Ueda, in effect suspending any potential deportation for now.

The lawmakers previously had urged Department of Homeland Security Secretary Janet Napolitano for her agency to reconsider its December 2011 decision to deny a spousal green card for Ms. Ueda. They asked that the agency re-evaluate its policy on marriage-based immigration petitions for same-sex spouses, and particularly for the Dummerston couple.

“We welcome this remedy that for now will offer a measure of common sense and compassion for this Vermont couple. Ms. Ueda now will be able to apply to USCIS for authorization to work, and to the Vermont Department of Motor Vehicles for a driver’s license. All three of our offices have worked hard to support this loving and committed couple who have been unfairly prevented by DOMA from enjoying the rights and benefits that all lawfully married couples deserve,” the delegation said in a joint statement on Tuesday’s breakthrough.

Another Chink in DOMA’s Crumbling Armor

 

Veterans Affairs Refuses to Defend DOMA

On Wednesday, a Veterasn Affairs Department legal memo announced the VA’s refusal to defend the “Defense of Marriage Act” in veterans benefits cases.  The VA will not fight Fifth Amendment claims based on equal protection under the law brought against DOMA, says the memo signed by VA Counsel Will Gunn on behalf of VA Secretary Eric Shinseki.

Yale Law School had filed the case in the U.S. Court of Appeals for Veterans Claims on behalf of Carmen Cardona, a married disabled veteran who had served in the Navy for 18 years. Cardona had applied for an increase in benefits, which, because she is married to a woman, were automatically denied under DOMA.

The memo also says Shinseki believes DOMA should be subject to a “heightened scrutiny” standard, meaning it is up to defenders of DOMA to prove the law is justifiable under the constitution, and that under this standard, DOMA is unconstitutional.  This position echoes the reasoning offered by Attorney General Eric Holder earlier this year, and affirmed by President Obama, for the Department of Justice’s refusal to continue to defend DOMA.

Click here to read the legal memo in the Cardona case.

As it has done in the past, it is possible that the Bipartisan Legal Advisory Group, a standing body of the U.S. House of Representatives led by House Speaker John Boehner, will take over defending DOMA cases, such as the Cardona case, where the Obama Administration refuses to do so.

To read more on the VA’s refusal to defend DOMA, click on the following link to an article in the Navy Times.

The VA’s stance on DOMA is yet another chink in DOMA’s armor, and further proof that DOMA is not only unfair and discriminatory, but also unconstitutional.  We can look forward to the day when DOMA ends and married same-sex couples are no longer denied the important federal benefits they deserve.

President Obama Endorses Marriage Equality

 

In an ABC News interview today, President Obama described his personal evolution on marriage equality and affirmed his belief that same-sex couples should have the freedom to marry.

President Obama said:

"I'd hesitated on gay marriage in part because I thought civil unions would be sufficient . . . I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married."

Click here to watch the video of President Obama's statement.

For all of us whose long-standing mission is to work towards full civil marriage equality, the President's recognition that American families headed by same-sex couples deserve equal treatment under the law is wonderful news. We celebrate the President's affirmation that same-sex couples should have the same right to marry as heterosexual couples.

Because same-sex couples, including legally-married same-sex Vermont couples, will continue to face discrimination as long as the Defense of Marriage Act (DOMA) stands, Vermont Freedom to Marry will carry on our work for its repeal. Until all married couples have equal federal recognition, families headed by same-sex couples will face legal and financial hardships.

We still have a lot of work to do until same-sex couples and their families share all the same federal benefits and protections that other married couples take for granted, but it is a significant step forward when the highest office in the nation firmly recognizes the equal humanity of all American families.

While there will be setbacks on the road to full equality, we also see continuing proof that the tide is changing towards justice as more and more people, including the President, are willing to stand on the right side of history.

As Mayor Michael R. Bloomberg of New York, an independent, said aptly put it:

“No American president has ever supported a major expansion of civil rights that has not ultimately been adopted by the American people, and I have no doubt that this will be no exception.”