Legal Same Sex Married Couples Still Fight Federal Law


Same-sex couples can walk down the aisle and stuff their faces with all the wedding cake they want in  nine states and the District of Columbia,  where same-sex marriage is legal. But the battle for equality is still a struggle with the 1996 Defense of Marriage Act (DOMA) preventing same-sex married couples access to spousal benefits that heterosexual married couples enjoy.

The reality remains that health coverage and benefits, social security, Medicare, Medicaid, retirement benefits, citizenship benefits through marriage, rights to inheritance through death and many other marital rights are denied to same-sex married couples because of the DOMA.

“There are literally hundreds of rights that are associated with marriage that are denied to same-sex couples at the federal level,” said David Mariner, executive director of The DC Center for the LGBT community. “They can affect virtually every aspect of individual married life.”

Even the ability to file joint federal income taxes together is not afforded to those in a same-sex marriage. Though able to file in some states, the IRS still recognizes the federal law of DOMA, which defines marriage as “a legal union between one man and one woman.”

In 2011 President Obama and the Justice Department denounced the legality of DOMA, saying that they did not support the numerous ways in which the law treated heterosexual and same-sex married couples differently. The words made a powerful public statement  but did nothing to change the second-class status of married  same-sex couples as far as federal law.

But some believe that the President is leading the country in the right direction.

“I think President Obama, with a lot of other Americans, realize that the federal discrimination is wrong and should be unconstitutional,” said Maryse Pearce, Gay and Lesbian Activist Alliance community engagement coordinator.

Still, there are Americans who oppose overturning DOMA-there’s even a huge division within Congress. Attorneys from the House of Representatives called the Bipartisan Legal Advisory Group (BLAG) are legally defending DOMA. Speaker John Boehner sits at the head of the attorney group and provides funding for BLAG court cases with federal taxpayer money. 

So far Boehner has overspent on budget, using $3 million of taxpayer money in many failed court attempts to defend DOMA. “There is nothing intrusive in the least about DOMA,” the lawyers conclude. “It is simply a definitional statute that defines, for federal law purposes, ‘marriage’ and ‘spouse,” according to a statement BLAG  released late 2011 in reaction to the Obama administration renouncing the law. 

Though the constitutionality of DOMA is increasingly being questioned, it will take a Supreme Court decision to overturn Section Three of the law completely, which would give couples whose legal residence is in a state that recognizes their marriage to access federal benefits.

This would undeniably be a monumental step for gay and lesbian couples if federal benefits are in fact extended to married couples. However, the second part of Section Three of DOMA is unaddressed-leaving the right for states to individually choose not to acknowledge the legality of a marriage  that took place in a different state.

Individuals like Madeleine Hershey, 49, who has been married to her partner Michelle for over 18 years and resides in Pennsylvania- a state that does not recognize same-sex marriage- believes that not addressing this part of  DOMA is a key mistake.

“If the constitutional challenge to the federal DOMA is successful then what it will mean for us immediately is very little because in my understanding even if DOMA is completely overturned it will still be a state’s right issue as to if we will be recognized, “she said.

“The IRS is under no obligation to honor our marriage for the purposes of tax law or anything like that if the state in which we reside doesn’t. It won’t make any difference to us in Pennsylvania,” Hershey  said..

The Supreme Court will  soon begin dealing with Section Three, with oral arguments for  Windsor v. United States scheduled for March 27.

Supporters of the ban on DOMA remain optimistic that results will be in their favor.

“There isn’t much that we can do to influence the Supreme Court. They’re going to decide however they decide, but I think that the tide is definitely turning towards same-sex marriage…I think the more states that legalize same-sex marriage, the harder it will be to discriminate against people,” Pearce said.