Two new lawsuits filed against Defense of Marriage Act

HARTFORD, Conn. — In what one attorney is calling a "full-court press" against the traditional definition of marriage, two major gay marriage lawsuits were filed Nov. 9 in federal court, doubling the number of suits seeking to force the federal government — and perhaps all 50 states — to redefine marriage to include homosexual couples.

Including the high-profile case against California Proposition 8, there are now four gay marriage cases in federal court, all with the backing of attorneys or organizations that have a history of success. All of them have been filed since President Obama took office — a fact that opponents of "gay marriage" say is not coincidental.

"This is a full-court press against marriage, and it's one to be concerned about," Dale Schowengerdt, an attorney with the Alliance Defense Fund, which opposes the suits, told BP.

Opponents of gay marriage warn that its legalization will negatively affect all of society, impacting everything from the tax-exempt status of religious organizations to the way private businesses are run to what is taught in elementary schools.

The latest suits were filed separately by the Americans Civil Liberties Union and Gay & Lesbian Advocates & Defenders (GLAD). The ACLU suit was filed in a New York federal court on behalf of a lesbian woman whose partner died in 2009, while the GLAD suit was filed in a Connecticut federal court on behalf of same-sex couples "married" in Connecticut, New Hampshire and Vermont. GLAD is the same legal group that successfully sued to have gay marriage legalized in Connecticut and Massachusetts.

Both of the new suits seek to have Section 3 of the Defense of Marriage Act (DOMA) struck down — the section that defines, for federal law, marriage as the union of a man and a woman. The plaintiffs say DOMA, signed into law in 1996, prevents the same-sex couples from receiving federal benefits.

Both suits were filed four months after a federal judge within the First Circuit Court of Appeals declared DOMA Section 3 to be unconstitutional. That decision is being appealed. The latest suits are similar to that earlier suit — all of them claim a violation of the Constitutional's Equal Protection Clause — but are different in one important way: They were filed in a different circuit, the Second Circuit. The more suits that are filed, Schowengerdt said, the more likely gay marriage supporters are to have a favorable ruling with at least one of the appeals courts.

"When the Supreme Court takes a case, they look at what are called circuit splits — if one circuit decides a case one way and another circuit decides it another way, that's often enticing to the Supreme Court to resolve the issue," Schowengerdt said.

The suits are being filed at a time when the Obama Justice Department is giving what critics call a halfhearted defense of the Defense of Marriage Act, which Obama opposes. For instance, in 1996 when it passed DOMA, the House of Representatives said the law was needed to encourage responsible procreation and mother-father homes. In recent years some state courts have cited those reasons in refusing to legalize gay marriage, but the Justice Department has chosen not to use that line of reasoning. The Bush Justice Department did use those arguments.

"These activists on the left are realizing they have an administration in office that is not giving the Defense of Marriage Act the full and vigorous defense that it deserves," Schowengerdt said. "... I think that's what is driving this issue right now. It's essentially a race to the Supreme Court."

The case that has gotten the most attention, the lawsuit against Prop 8 in California, is being appealed to the Ninth Circuit Court and will be heard Dec. 6. A lower court struck down Prop 8, which is a California constitutional amendment passed by voters in 2008 that defines marriage as being between a man and a woman. The case could lead to the overturning of every constitutional amendment and statute that prohibits gay marriage.

The lawsuits against DOMA Section 3 technically do not target marriage amendments directly, because the suits steer clear of a challenge to DOMA Section 2 which gives states the option not to recognize another state's gay marriage. But that does not mean states should not be concerned, Schowengerdt said.

"If [Section 3] of DOMA is found unconstitutional and the court says it violates Equal Protection and Due Process, those same arguments could be made against the rest of DOMA and the state marriage amendments," he said. "It's the exact same legal theory — that the definition of marriage violates Equal Protection and Due Process."

The Alliance Defense Fund will file friend-of-the-court briefs in the new cases supporting the Defense of Marriage Act, Schowengerdt said.


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