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Legal challenge of federal gay marriage ban begins

Plaintiffs argue that the federal Defense of Marriage Act, which bans gay marriage, is unconstitutional. The federal trial opened Thursday in Boston.

By Will BuchananContributor / May 6, 2010

Mary Bonauto, attorney for Gay and Lesbian Advocates and Defenders, is surrounded by plaintiffs as she speaks about the case against the federal gay marriage ban outside the federal courthouse in Boston Thursday.

Wendy Maeda/The Boston Globe/AP

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The latest legal challenge to the US Defense of Marriage Act began Thursday in a federal courtroom in Massachusetts, in a case that will determine whether gay couples legally married under state law are entitled to the same federal benefits that heterosexual couples receive.

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Eight same-sex couples and three widowers, who filed their suit last year, are challenging the 1996 federal law known as DOMA, which bans gay marriage. They argue DOMA is unconstitutional because it denies them equal protection under the law.

The case puts the Obama administration in an unusual situation. The president has said he would like to see DOMA repealed, but the Justice Department is tasked with defending the law.

“The government does not presently support DOMA and would like to see it repealed, But we do argue for its constitutionality,” said Justice Department attorney W. Scott Simpson at the onset of his argument. He filed a motion to dismiss the challenge to the federal law, arguing for the US government’s right and responsibility to apply federal law as it sees fit, regardless of some states’ decision to “experiment” with broadening the traditional definition of marriage.

The individuals challenging DOMA are supported by Gay & Lesbian Advocates and Defenders (GLAD), which successfully argued the 2003 case that led the state Supreme Court to, in effect, legalize gay marriage in Massachusetts. Their legal team also includes Paul Smith, who in 2003 successfully argued the major gay rights case Lawrence v. Texas, in which the Supreme Court struck down a Texas sodomy law.

Five states and the District of Columbia allow same-sex couples to wed. However, gay married couples in these must file federal tax returns as “single” and are not eligible for certain retirement benefits and Social Security benefits that spouses of heterosexual marriages receive.

GLAD attorney Mary Bonauto asked the court to rule in favor of her clients in a summary judgment – a decision made before a full trial ensues. She argued that DOMA’s legislative history clearly shows it to be an inappropriate and unconstitutional effort by Congress to express “moral disapproval of homosexuality.”

The plaintiffs include a retiree of the federal Social Security Administration who was denied health insurance for his spouse; three widowers who were denied death benefits for funeral expenses; and couples who have paid more in federal taxes because they are not allowed to file joint returns, according to the Associated Press.

In his argument, the government’s Mr. Simpson noted administrative and fiscal challenges to recognizing same-sex marriages in some states and not others.

In California, a federal judge is hearing another potentially important gay marriage case. In that case, Perry v. Schwarzenegger, the court is considering the constitutionality of a voter-approved state ban on same-sex marriage. Closing arguments are expected soon.

In the Massachusetts case, Gill v. Office of Personnel Management, US District Judge Joseph Tauro praised the work of both attorneys, saying, “This case has been well presented by both sides. Very professional.” He did not say when he will rule on their motions, which will determine if the case will proceed.

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