Chipping Away at DOMA

David Rosenblum at work (courtesy of Mazzoni Center)

The so-called Defense of Marriage Act (DOMA) is the federal law that prevents the federal government from recognizing same-sex marriages, and also allows states to ignore valid marriages entered into in other states. Pennsylvania has its own version of the law that finds these valid same-sex marriages to be “void,” and therefore gay and lesbian couples who marry elsewhere are not entitled to any marital benefits within PA.

At Mazzoni Center Legal Services, we are realistic about what would happen politically if we attempted to challenge these laws in court. It is likely that the state legislature in Harrisburg would re-energize around the issue of actually amending the Pennsylvania constitution to add anti-marriage language.

Accordingly, we have made the strategic decision to take a more reserved approach to such challenges and start whittling away at some of the smaller incidents of marriage. To that end, we have been able to successfully seek dissolutions of same-sex civil unions that were entered into in other jurisdictions. We are considering a strategy of similarly bringing divorce actions on behalf of couples who married in states that allowed this, which would afford the parties the opportunity to seek alimony, equitable division of property and all of the other rights that opposite-sex couples receive upon divorcing.

In a recent case, we represented a lesbian couple from Chester County, Kate and Lilly, who married in New York and now wanted to share the same last name to recognize that they are a family. Though heterosexual couples who marry can automatically change their name upon marriage, the process is more complicated when the marriage is not recognized.

Kate had to utilize the somewhat convoluted process of ensuring that she had no criminal background, had no outstanding judgments, and was not seeking to change her name for nefarious reasons. She was also required to publish her name change in two newspapers, which is obviously not required when a woman opts to take her husband’s last name. While we did not overtly challenge DOMA, we were absolutely honest in our filings with the court about the reason for the requested name change. We are delighted to report that the requested legal name change was granted in mid-March and Kate and Lilly now share the same surname!

At the macro level, there are dramatic challenges taking place to the constitutionality of DOMA, with much success. There was much attention given to the fact that the Department of Justice (DOJ) under President Obama has refused to defend the constitutionality of DOMA in court challenges.  This is not merely an esoteric policy shift, but is having dramatic real-world results in court. In a recent case in California, the court ruled in favor of a federal employee who was unable to obtain health insurance for her wife due to DOMA. The DOJ successfully argued that the court needed to apply a “heightened level of scrutiny” to such provisions, which means that there needs to be a compelling reason for the ban on such coverage.  This was the first court in the country to assert that gay and lesbian individuals should be entitled to this kind of protection, since most courts had held that the government only had to say that there was a rational basis for their policy.

As in the California case, the DOJ recently argued in Philadelphia that the court needed to apply this heightened level of scrutiny when analyzing the constitutionality of DOMA. The case in question involves a dispute between a lesbian’s widow and her parents over who should receive her pension benefits. Since there are certain rights afforded to spouses, the federal court judge asked that the parties weigh in on the issue of whether DOMA applies to this particular situation, and if so, whether it is constitutional or not.

While we are still awaiting a decision from the judge, and he may opt to rule on the facts without getting to the larger question of DOMA, the DOJ made a strong argument that policies that apply differently to LGBT people are entitled to heightened scrutiny to ascertain if they are constitutional or not.

Across the country, legal challenges to DOMA are on the rise, whittling away at the various components of this clearly discriminatory law. In time, we will undoubtedly see more and more courts finding that such distinctions cannot withstand constitutional scrutiny and ultimately rule that marriage equality should be granted for all people, regardless of their sexual orientation or gender.

David Rosenblum is the legal director of the Mazzoni Center.