Another challenge to DOMA

A RULING by a federal judge last week that concluded the government had discriminated against a same-sex couple has exposed the injustice of the Defense of Marriage Act (DOMA).

The case involves a public defender, Brad Levenson, whose same-sex spouse, Tony Sears, was denied health care coverage and other benefits. Ninth U.S. Circuit Court of Appeals Judge Stephen Reinhardt said this was "unconstitutional." Reinhardt wrote:

The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state.

The case doesn't immediately impact on the federal Defense of Marriage Act (DOMA), the Clinton-era law that bars same-sex couples from receiving the same benefits as heterosexual couples, but it does represent another step toward a direct challenge.

In January, Appeals Court Chief Judge Alex Kozinski made a similar ruling in the case of 9th Circuit staff lawyer Karen Golinski and her spouse Amy Cunninghis. Kozinski awarded benefits to Cunninghis, but stopped short of calling the discrimination unconstitutional. Kozinski, an appointee of Ronald Reagan, argued that the federal law was vague about whether benefits could be extended to someone who wasn't a family member, and therefore Golinski's spouse should be covered.

Legally, the two rulings don't apply beyond the two couples involved because they were made in the federal courts' administrative dispute process, not in the course of lawsuits. Yet the point is clear: denying same-sex couples the same rights as heterosexual couples is discrimination, plain and simple.

Hopefully, these cases will have an impact on the California Supreme Court, which announced that it would begin hearing arguments March 5 on the constitutionality of Proposition 8, a referendum that overturned equal marriage rights. The court will have 90 days to issue its decision after the arguments. The marriages of some 18,000 same-sex couples performed before Prop 8 was passed hang in the balance.

Many see the rulings as a signal that if DOMA was finally scrutinized in federal court, it wouldn't hold up.

Levenson and Sears know the battle is still on, however. "I'm not convinced this is over," Levenson told the Los Angeles Times. "But it pushes the conversation forward." Levenson said that when he tried to file a new benefits form, it was rejected by a computer programmed to refuse same-sex couples.

DOMA BECAME law in 1996, effectively codifying discrimination against lesbian, gay, bisexual and transgender (LGBT) people by denying their legal right to marry. The law barred the federal government from giving any legal recognition to married gay couples, even if their marriage was recognized in an individual state. DOMA successfully denies same-sex couples some 1,000 federal rights and benefits that married heterosexual couples have automatically.

The law passed in 1996 and was signed by Bill Clinton, who put the legislation on the fast track, pandering to the religious right by painting the proposal as "protecting" the institution of marriage. DOMA imposes a legal definition of "marriage" as "only a legal union between one man and one woman as husband and wife" and "spouse" as only to "a person of the opposite sex who is a husband or a wife."

Only 14 senators voted against the bill sponsored by Georgia Republican Rep. Bob Barr, and several leading Democrats with reputations as liberals--including Joe Biden and Paul Wellstone--voting for it.

Today is a new day, though. If congressional Democrats and Barack Obama want to further the cause of ending discrimination, they should put repeal of DOMA on the administration's short list. These recent rulings strengthen the case.