The same group that won the Massachusetts Supreme Court decision paving the way for gay marriages in that state has filed a new federal lawsuit challenging the Defense of Marriage Act (DOMA). The suit alleges equal protection violations of same-sex spouses who were denied federal benefits (such as pensions or Social Security) under DOMA. I can’t go into great detail without access to the actual filings, but at first blush this seems like a clear-cut equal protection violation. In my opinion DOMA cannot withstand constitutional scrutiny, and this lawsuit could very well be the first step in dismantling DOMA.
Today’s lawsuit doesn’t challenge the provisions of DOMA that allow states to refuse to recognize same-sex marriages effectuated in other states. Mary Bonauto, head of Gay & Lesbian Advocates & Defenders (GLAD), insists that her organization has no plans to challenge that portion of DOMA, but it’s only a matter of time before the rest of DOMA is challenged. If the federal benefits portion of DOMA is faulty (and I believe it is), then a similar argument can be made that the state provisions violate the Full Faith and Credit Clause.
I’ve never heard any of the legal counsel to the LDS Church give an explanation as to why the Church supported a federal constitutional amendment on traditional marriage, but I have always assumed it was because the Church’s legal advisers recognized that DOMA was probably unconstitutional. From a legal perspective I think an amendment to the U.S. Constitution on marriage is a bad idea, since marriages have always been left to the states. But if I am right and DOMA is destined to fail, then only a federal constitutional amendment could preserve the traditional definition of marriage on a national level.