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Hara Case Stayed, Appeals Court Says Defense of Marriage Act Unconstitutional

by Sue O’Connell
Thursday May 31, 2012
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In a 3-0 decision, the First Circuit Court of Appeals upheld the lower court decision in Gill v. Office of Personnel Management which found the federal Defense of Marriage Act (DOMA) unconstitutional. The case is likely headed to the U.S. Supreme Court, as a federal statue has now been found unconstitutional.

The First Circuit has issued a stay, so DOMA is still in effect. The court did not recognize a right to marry, as it was not part of this case, which was a classic "equal protection case" according to Mary Bonauto, of Gay & Lesbians Advocates & Defenders (GLAD). Bonauto said in a press call on Thursday that the court ruled on equal protections, which is "a basic promise of America."

"This is a fantastic decision that is crisp, well rooted, and well anchored" said Bonauto. "It points out the weaknesses of DOMA, especially the intrusion of the federal government."

DOMA denies federal benefits to gay married couples. DOMA was passed in 1996. Same-sex marriage has been legal in Massachusetts since 2004. The appeals court agreed upheld a 2010 decision of a lower court judge who ruled that the law is unconstitutional.

The court ruled using an Intensified Rational Basis Review, meaning the group in question, married same-sex couples, have historically been targeted and is disadvantaged, and DOMA essentially had the Federal Government interfering with State issues. The Court also stated that moral disapproval alone is not a basis to discriminate.

"This ruling is a historic victory for loving gay and lesbian couples and their children," said HRC President Joe Solmonese. "For the first time, a federal appeals court has recognized that our constitution will not tolerate a law that forces the federal government to deny lawfully-married same-sex couples equal treatment. The writing is clearly on the wall for the demise of this unjust and indefensible law that hurts real families."

"We applaud GLAD, the Commonwealth of Massachusetts and the courageous plaintiffs for their incredible efforts on behalf of gay and lesbian couples in Massachusetts and across the nation," said Solmonese.

MassEquality Executive Director Kara Suffredini said, in a statement, "This development is critical. Marriages of same-sex couples in Massachusetts are still not recognized by the federal government because of the so-called Defense of Marriage Act. In addition to being immoral, this inequality means that married same-sex couples do not have access to many of the safety nets afforded other married couples: social security survivor benefits; Medicaid long-term care benefits; spousal veteran benefits; or rights of inheritance. DOMA has, in short, created an indefensible two-tiered system of treatment for married couples based solely on the gender of the spouses."
The decision reads: "To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."


Dean Hara’s case stayed

Dean Hara is one of the Gill plaintiffs and is the widow of the late Congressman Gerry Studds. The couple were legally married in Massachusetts. The Defense of Marriage Act prevented Hara from receiving federal benefits. A district court ordered Social Security to pay lump-sum death benefits, but denied his second claim for health coverage as a surviving spouse for health benefits under the Congressman’s Federal Employees’ Health Benefit Plan. In order to receive benefits, Hara would have to be an eligible "annuitant" under the annuity statute, and the Congressman had to have enrolled in the health benefit plan for "self and family," which he had not done.

Office of Personnel Management ("OPM") had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. A review board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed.

Hara argues that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve.

The judgment assumes that Supreme Court will review of DOMA, and Hara’s case will be determined then.

Copyright Bay Windows. For more articles from New England's largest GLBT newspaper, visit www.baywindows.com

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