Massachusetts Attorney General Martha Coakley, with her Civil Rights Division Chief Maura Healey, and GLAD Attorney Mary Bonauto (seated). (photo: Joel Benjamin)
[NOTE: This story ran in the September/October issue of Boston Spirit magazine. It provides some back story to today's court hearing on challenging the Defense of Marriage Act (DOMA).]
Three local women take on the feds in overturning DOMA and holding the government up to the values enshrined by our forefathers in the nation’s constitution
by Tony Giampetruzzi
On July 8, a federal judge ruled that Army Veteran Darrel Hopkins won’t have to choose whether to be interred in a Arlington National Cemetery in recognition of his devoted service to his country, or be buried next to his husband Tom Casey Hopkins elsewhere—a choice married couples with opposite-sex partners have never had to make. And Mary Ritchie won’t be denied benefits if her spouse, Kathy Bush, a state trooper, dies on duty. Further, Jo Ann Whitehead will receive $13,000 more per year now if her wife Bette Jo Green passes away before she does. And also, Marlin Nabors and Jonathan Knight will pay several thousand fewer dollars each year in taxes.
And while U.S. District Court Judge Joseph Tauro’s July decisions are likely to be appealed, even up to the Supreme Court, they represent a clear and major victory in the fight to overturn DOMA, the so-called Defense of Marriage Act, which bans the federal government from providing any recognition of marriage between partners of the same sex.
That such a clearly pro-equality ruling came from a judge appointed by former president Nixon, comes thanks—in no small measure—to the work of three local women.
Massachusetts Attorney General Martha Coakley, along with her Civil Rights Division Chief Maura Healey and GLAD Attorney Mary Bonauto, are taking the United States government to task for not upholding the basic values enshrined in this country’s constitution.
“My job is to represent the Commonwealth and to represent the people of the Commonwealth, and we found that, as we tried to be fair and treat people equally, the federal government was saying through DOMA that we could not do that,” Coakley told Boston Spirit. “Our courts have always interpreted that constitution in a way that is consistent with what I think was a huge issue for the founding fathers—and they were fathers at the time—around the concept of equality, liberty and justice. Those concepts were very different back then. But part of what our courts have done, and what I think is our job to do in an evolving society, is make sure those concepts are implemented.”
Call Martha, Mary, and Maura founding mothers—if you will—they are breathing new life into the values enshrined in the Constitution of the United States of America.
“There are the words in the Constitution—the promise of equality, liberty and justice for all—and then there’s reality. And, thankfully in Massachusetts those two things are the same,” says Bonauto, who argued Gill v. Office of Personnel Management.
Bonauto is a longtime crusader for marriage equality. In 1999, she won the case in Vermont that led to the nation’s first civil union law. She served as lead counsel in the Massachusetts Goodridge case that legalized civil marriage for same-sex couples, and she’s continued to be instrumental in marriage equality efforts throughout New England. She’s uniquely aware of the important role that Massachusetts has played in the history of civil rights nationally.
A rich history, which is often traced back to John Adams, who penned the Massachusetts Commonwealth’s Constitution. The document, the oldest continuously working constitution in the world, was an early roadmap for equality and served as the model for the U.S. Constitution.
Bonauto used the Commonwealth’s Constitution to argue that denying same-sex couples the right to marry was unconstitutional. The Massachusetts Supreme Judicial Court agreed with her in 2003. “The right to marry is not a privilege conferred by the State,” wrote Chief Justice Margaret Marshall for the majority in Goodridge v. Department of Public Health, “but a fundamental right that is protected against unwarranted State interference.”
While elated, Bonauto was well aware that barriers beyond Massachusetts’ control still hindered the state’s ability to provide its married same-sex couples with all the benefits of matrimony.
Over the next few years, some of that changed. The scope of SJC’s ruling broadened, most notably by the legislative repeal of the 1913 law prohibiting non-residents from marrying in Massachusetts. And other states, like Connecticut, Vermont, and Iowa, began to legalize marriage for same-sex couples. But DOMA, which codified marriage as between one man and one woman and was signed into law by President Bill Clinton in 1996, continued to prove an enormous obstacle for full benefits for hundreds of same-sex couples.
“I remember when the [U.S.] Senate voted [on DOMA] in September of 1996,” says Bonauto. “I was actually at Copley Square that day at a rally against DOMA. I remember back then thinking that this is going to pass and that someday we would be able to take it down.”
By 2009, it became clear that it was time to chip away at DOMA, and high profile women from GLAD and the state of Massachusetts, are leading the charge.
“I think it was important that Massachusetts took a stand and said it’s not for the Congress of the United States to override our determination of who is married,” Bonauto says. “Never in 230 years has the Congress come up with a comprehensive definition of marriage except when it looked like same-sex couples might marry. Why did they change the rules now? I think it’s important for the Commonwealth to come forward and say ‘this is our job, not Congress’s job, and we have the right to fulfill our Constitution and marry people consistent with our views of equality.’”
The search for plaintiffs began. “It takes a lot of courage to step forward and be vulnerable in the way that they are vulnerable,” says Bonauto. In July, 2009, seven married couples and three widowers stepped forward to challenge DOMA, claiming that they were subject to higher taxes and a lack of health and survivor benefits in comparison to married heterosexual couples. Gill v. Office of Personnel Management challenged that DOMA’s section 3 violates equal protection guaranteed by the Due Process Clause of the Fifth Amendment.
Concurrently, Attorney General Martha Coakley and Assistant AG, Maura Healey launched a parallel suit against the Department of Health and Human Services claiming that section 3 of DOMA is unconstitutional on the grounds that the 10th amendment reserves power not delegated to the federal government by the Constitution to be the power of the states or the people.
Judge Tauro ruled in favor of equal marriage in both cases on the same day.
But Massachusetts Assistant Attorney General Healey notes that these cases are not really about marriage, and that they are fundamentally different from the Goodridge case in Massachusetts in 2003, and the proposition 8 case recently ruled on in federal court, both of which battled for the right to marry. GLAD and the AG’s cases are about equality.
“Our DOMA case is not a right to marry case—unlike California and Goodridge—this is a case about making sure that all married people are treated equally,” says Healey. “We wanted to make sure that this particular piece of discrimination, wrought by federal law, is no longer able to exist here in the Commonwealth and negatively impact families.”
The dilemma that Healey’s clients face clearly illustrates this point. Vietnam War veteran Daryl Hopkins wants to be buried with his husband, Tom Casey Hopkins, in a veterans cemetery, but who has been denied that right by the Department of Veterans Services on the grounds of DOMA.
“That’s a very real display of the injustice that DOMA brings,” says Healy. “This is what DOMA has done to us as a state. It says, sure, give out marriage licenses, but they just don’t mean the same as marriage licenses for other married people here in the State. That seemed to us to be very wrong.”
Healey and Bonauto have a strong champion in Attorney General Martha Coakley, who has not only supported their work, but who has sounded a clarion call of her own, making it clear that on her watch, there will be no disparity in marriage equality.
For Coakley, passion for marriage equality is also personal: she recently served as a celebrant for a good friend who had considered California as the locale for here fete, but was able to be swayed to a Bay State celebration.
“It was a great pleasure for me to be able to be the celebrant on the principle that, in Massachusetts, we can marry same-sex couples and also because it was a good friend,” says Coakley. “To me, this is about family and fairness and providing the opportunity for everybody in Massachusetts to be married - or not, if they wish - and pursue all the things that we treasure.”
All three women—and Chief Justice Margaret Marshall, who announced her retirement last month—have proven vanguards of marriage equality, and have the score card to prove it. At press time, it was unclear whether the DOMA decisions would face appeal, but it was announced that Proposition 8, a citizen veto of gay marriage in California, was overturned and an appeal would likely make its way to the Supreme Court. The Massachusetts DOMA challenges could be on parallel tracks, and, if the pro gay marriage advocates have it their way, Bonauto could be called to approach the bench.
Is that how she sees it? When asked, she pauses, collecting and crafting a signature response.
“Should this case get to the Supreme Court, we’re gonna put the best person up—that’s all I can say.”
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