US lawyers defend letter of gay marriage ban

By Jonathan Saltzman and Martin Finucane
Globe Staff / September 19, 2009

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Justice Department lawyers are reluctantly defending a law that bars the federal government from recognizing same-sex marriages, making their legal arguments in a Boston court while pointing out that the Obama administration opposes the measure.

Government attorneys said in a brief filed yesterday in US District Court that the administration believes the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, is discriminatory and wants it repealed.

“Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here,’’ the attorneys said.

The law defines marriage as a union between a man and a woman. Six same-sex couples and three men whose husbands have died - one of the deceased was retired Massachusetts congressman Gerry E. Studds - have filed a lawsuit, asserting that the law treats them like second-class citizens and is unconstitutional.

Because of the law, the plaintiffs said, they were excluded from using federal benefits that opposite-sex couples can obtain, including health insurance programs for federal employees, retirement and survivor benefits under the Social Security Act, and the ability to file joint federal income tax returns.

Janson Wu - a lawyer for Gay & Lesbian Advocates & Defenders, which is representing the plaintiffs - said the legal team was prepared for the government’s motion to dismiss, which closely resembled the Obama administration’s response to a similar lawsuit filed by a southern California gay couple. A federal court dismissed that suit on Aug. 24.

“There’s nothing in the brief that we were unprepared to deal with, and there’s nothing in the government’s brief that addresses the fact the DOMA is the only exception in a long history of the federal government’s deferral to the states’ determination of who is married,’’ he said.

Martin Koski, a 67-year-old retired federal employee who became a plaintiff after the government refused to extend federal health benefits to his husband, James Fitzgerald, said he should be treated no differently from other federal retirees.

“We’re married in the state of Massachusetts, and the federal government, as far as we’re concerned, has chosen to disregard that and say we’re second-class citizens,’’ said the Bourne man, who married Fitzgerald two years ago.

Koski said that he had voted for Obama in the election, but that he was not upset with him.

“Congress makes the law, and until Congress decides to do something about it, I guess there’s not much the executive branch can do,’’ he said. “If someone feels it’s not right, we have to go through the process, and, hopefully, it will get to the Supreme Court and they’ll make a just decision for us.’’

Legal specialists have said the suit filed in March was the first serious challenge by a group of plaintiffs to the federal law passed in 1996.

The Commonwealth of Massachusetts, the first in the nation to legalize gay marriage, filed a separate challenge to the law in July.

The lawyers who submitted the Boston brief yesterday included US Assistant Attorney General Tony West and Michael Loucks, the acting US attorney in Boston.

The government argued the court should not act as a “superlegislature,’’ judging the wisdom of a law, but must uphold the DOMA “so long as there is any reasonably conceivable set of facts that could provide a rational basis for it.’’

Congress was entitled to address social reforms on a piecemeal basis and provide benefits only to those who have historically been allowed to marry, the government argued.