Concise Guide to Gay Marriage Lawsuits

November 12, 2010

Earlier this week, the ACLU filed a lawsuit in New York alleging that the Defense of Marriage Act [DOMA] violated the Constitution’s equal protection clause. The number of gay marriage lawsuits has been adding up, so it’s worth reviewing them all. Here’s what you need to know.

Perry v. Schwarzenegger

Overview: The lawsuit to overturn Proposition 8. It’s also the most well-known out of all the lawsuits challenging gay marriage bans. At the most basic level, the lawsuit is a federal challenge to a state marriage ban. The suit alleges that marriage is a constitutional right, and that the government doesn’t have a good enough reason (rational basis is the legal term) for denying that right to same sex couples.

The couples filing the lawsuit are Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo. Also notable are their attorneys, Ted Olsen and David Boies, who were on opposite sides of the Bush-Gore election court battle in 2000.

Location: California.

Status: The case went to trial, and Judge Walker decided against the gay marriage ban based on both the equal protection and due process clauses of the Constitution. The case has been appealed the Ninth Circuit Court of Appeals, where a 3 panel judge will issue an opinion. The court will hear oral arguments on December 6.

Outlook: Uncertain. No matter what the Ninth Circuit does, the case will likely be appealed to the Supreme Court. That process will take years. In the meantime, judicial orders will likely be stayed pending appeal, meaning that they have no effect while the case is still being resolved.

Massachusetts v. Department of Health and Human Services

Overview: Unlike the other lawsuits, this lawsuit was not filed on behalf of particular people, but on behalf of the state itself. The Massachusetts government alleges that Congress didn’t have the authority to regulate marriage and pass the Defense of Marriage Act, the law prohibiting the federal government from recognizing gay marriages. In other words, it violates the Tenth Amendment, which says that unless the Constitution grants the federal government a specific power, the power is left to the states. Regulating marriage is one of these powers, Massachusetts alleged.

Location: Massachusetts

Status: Judge Louis Tauro ruled against the government back in August and declared DOMA unconstitutional for violating the Tenth Amendment. The judge said that the federal government cannot decide who gets to be married—instead, states do.

The case has been appealed to the First Circuit Court of Appeals. The decision is stayed pending the appeal.

Outlook: I like this case because it uses traditional conservative arguments (state rights) to support what is traditionally a liberal cause (gay marriage). On the other hand, it’s tough to say that the federal government shouldn’t be involved in marriage. The federal government has always been involved in marriage through the Internal Revenue Code (tax laws) and even the Social Security Act. Massachusetts will have to show why the government can define marriages through the tax code, but not through DOMA.

Pedersen v. Office of Personnel Management

Overview: This case is about the financial benefits to being married. There’s multiple plaintiffs, but Joanne Pedersen is the main one. She’s legally married to her same sex spouse, but can’t put her on her health plan because of DOMA. The other plaintiffs, also legally married, can’t get Social Security benefits or benefits under the Family and Medical Leave Act for their same sex spouses.

Location: Connecticut.

Status: This case was just filed this week.

Outlook: Pretty good. The lawsuit was based on Gill v. OPM, a Massachusetts, case in which the federal judge said that DOMA was unconstitutional because it violated the 10th Amendment (see below). In this case, the lawsuit alleges that DOMA violated the due process clause (found in the 5th and 14th amendments). Still, the attorneys for Pedersen modeled the case after Gill—so it’s basically the same laws with near the same facts. They might add the 10th Amendment argument later.

Gill v. Office of Personnel Management

Overview: This case is about whether Section 3 of the Defense of Marriage Act violates the Equal Protection Clause of the Constitution. It was filed on behalf of same sex legally married couples who were denied federal benefits because of DOMA. In short, their state said they were married, but the federal government said they weren’t.

Still, this case does not ask the federal government to recognize a same-sex right to marry. Instead, it says that the government should get out of the business of defining marriage. It involves same sex couples who are already married, not who want to get married.

Location: Massachusetts

Status: Judge Louis Tauro, the same judge from Massachusetts v. Department of Health and Human Services (see above), ruled against the government and declared DOMA unconstitutional for violating the Equal Protection Clause of the Constitution. In short, the judge said that the government didn’t have a good enough (or rational basis) reason for discriminating against same sex couples. The case is on appeal to the First Circuit Court of Appeals.

Outlook: Like most of these cases, this one will probably end up in the Supreme Court. The case involves constitutional principles like equal protection and state rights, which are issues the Supreme Court tends to handle.

Windsor v. U.S

Overview: This is the case filed just this week by the ACLU. The plaintiff, Edie Windsor, had to pay $350,000 in estate taxes upon the death of her same-sex spouse, Thea Spyer. If she were married to an opposite sex spouse, she wouldn’t have to pay any of it. As the lawsuit says, if “Thea” were “Theo,” the estate could have passed to Edie tax-free.

Location: New York (they were married in Canada, but New York recognizes same sex marriages performed elsewhere)

Status: The case was filed just this week.

Outlook: What’s unique about this case is that it’s based on discrimination through the Internal Revenue Code. It reminds me what Kelly Erb, also known as the taxgirl, said a few months ago, that a proper and potentially winnable DOMA challenge requires a good set of facts. I’m not sure this is the right set of facts, here’s what the case has going for it:

  • There’s a lot of money involved ($350,000)
  • You couldn’t as for a better plaintiff. Edie lost her same sex spouse after decades battle with multiple sclerosis and then a serious heart condition.
  • The facts are media worthy—news outlets will pick up on the sympathetic plaintiff and in the simplicity of the discrimination (If “Thea” were “Theo”…).
  • The remedy is financial. They want a check back from the government for the estate tax.

Still, like every other case here, don’t expect much until the Supreme Court touches it, which won’t happen for years.

About Gideon Alper

Gideon Alper
Gideon is a Florida attorney that focuses on gay adoption, LGBT estate planning, and second parent adoption.

1 Mad Professah November 15, 2010 at 12:03 am

This is a very helpful summary, I’m sure my students will thank you!

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2 Gideon Alper November 15, 2010 at 12:11 am

Glad you find it helpful!

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3 Darius Chambers October 3, 2011 at 10:54 pm

What happened to the Alabama gay marriage case?

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