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Topics In the News
Post-DOMA Legal Strategies
Posted by: Claude J. Summers on 07/09/13
Last updated on: 07/09/13
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Edie Windsor.

In the wake of the Supreme Court's historic ruling striking down Section 3 of the Defense of Marriage Act, leading glbtq legal groups must develop new legal strategies. In recent actions by Lambda Legal Defense and Education Fund and the ACLU, we get a glimpse of how the post-DOMA assault on discriminatory laws will be framed.

The Supreme Court's majority decision striking down the law that defined marriage for federal purposes as strictly heterosexual was posited on the fact that DOMA was enacted simply to injure same-sex couples. As Justice Kennedy wrote, "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."

The decision describes DOMA's principal effect as "to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality. . . ."

Moreover, Justice Kennedy added, DOMA also "humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

With its strong emphasis on equal protection, the Supreme Court's DOMA decision provides a roadmap to attacking the state laws that discriminate against gay and lesbian couples.

In recent filings, Lambda Legal and the ACLU have cited the Windsor decision to urge swift action by courts to assure equal rights in key states.

For example, scarcely more than a week after the June 26, 2013 decision by the Supreme Court, Lambda Legal filed a motion for summary judgment in a two-year-old marriage equality case in New Jersey state court.

In 2006, the New Jersey Supreme Court ruled in a case called Lewis v. Harris that the unequal legal treatment of same-sex couples in the state violated the New Jersey Constitution's equal protection guarantee and required the state legislature to either extend marriage rights to same-sex couples or create a separate but equivalent legal institution. The New Jersey Legislature chose to adopt the Civil Union Act, which provided same-sex couples "all the rights and benefits that married heterosexual couples enjoy."

In 2011, Lambda Legal filed a suit, Garden State Equality v. Dow, alleging that New Jersey's civil unions have not been effective in providing "all the rights and benefits that married heterosexual couples enjoy." That lawsuit has mainly languished as the New Jersey legislature passed a marriage equality bill only to see it vetoed by Governor Chris Christie. However, the U.S. Supreme Court's ruling in June promises to give new life to Lambda Legal's argument.

Indeed, the motion filed by Lambda Legal claims that the Supreme Court's invalidation of DOMA has made starkly clear how unequal New Jersey's civil unions are in comparison to marriage. Married couples have access to federal benefits but same-sex couples in New Jersey do not. Same-sex couples can be equal to heterosexual couples only when both are able to marry. The invalidation of DOMA means that New Jersey's civil unions are an impediment to equality rather than a road to it.

As the Lambda Legal brief explains, "New Jersey's exclusion of same-sex couples from lawful marriage deprives [same-sex] couples . . . of numerous federal protections, benefits, and responsibilities. . . The resulting violation of Lewis' mandate that "committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples," . . . is patent."

As Jacob Combs notes at Equality On Trial, not only will Lambda Legal's strategy likely be successful in New Jersey given the New Jersey Supreme Court's mandate for equal rights for both same-sex and opposite-sex couples, but it may also be successful in states such as Hawaii, Illinois, Colorado, Oregon, and Nevada, the five other states that offer robust civil unions or domestic partnerships but not marriage equality.

The DOMA opinion may also be crucial in striking down all the state statutes and constitutional amendments that ban same-sex marriage. There is, after all, abundant evidence that those amendments and laws were also enacted merely to make some couples more equal than others.

Lambda Legal and the ACLU have recently filed suits or motions for summary judgment in suits that had previously been initiated to reverse marriage bans in Illinois, Pennsylvania, and Virginia. Others are sure to follow.

The Supreme Court's ruling in Windsor struck down only Section 3 of DOMA since that was the question before it. But if Section 3 is unconstitutional because DOMA was enacted only to impose inequality on gay and lesbian citizens, then surely the entire act is unconstitutional, including Section 2, which allows states to refuse to recognize same-sex marriages performed in other states. Litigation challenging Section 2 of DOMA will no doubt be forthcoming. Given the forthright language used in the Windsor opinion, it is difficult to see how any section of DOMA can be deemed constitutional.

In the video below, the indomitable and beautiful Edie Windsor discusses the Supreme Court victory in the Windsor case.

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